Constitutional 
Limitations 


UPON 


SPECIAL 

Legislation 

Concerning 
Municipalities 


William  Backus  Guitteau 


Digitized  by  the  Internet  Ar_ 
in  2007  with  funding  from 
Microsoft  Corporation 


http://www.archive.org/details/constitutionalliOOguitrich 


Constitutional  Limitations 

UPON 

Special  Legislation 
Concerning  Municipalities 


WILLIAM   BACKUS   GUITTEAU 


Thesis  Presented  to  the  Faculty  of  Philosophy  of  the 

University  of  Pennsylvania,   in  partial 

fulfillment  of  the  requirements 

for  the  degree  of  Ph.D. 


TOLEDO,    1905 


Table  of  Contents 

CHAPTER  I 

Special  Legislation — Its  Origin,   Growth  and  Evils  1 

I     Origin  of  Special  Legislation        .         .  1 

II     Evils  of  Special  Legislation      ...      7 

CHAPTER   II 

Constitutional  Limitations   Upon  Legislative  Control 

of  Municipalities  .  .  .  .  .         11 

CHAPTER   III 

History    of    Ohio's    Attempt    to    Prevent    Special 

Municipal  Legislation  .  .  .  .  .17 

I     Constitutional  Convention  of  1851        .         17 
II     Constitutional  Convention  of  1873-1874       20 

III  Legislation  in  Ohio  Under  Constitutional 

Limitations  .....         24 

IV  Decisions  of  the  Supreme  Court        .         .    31 

CHAPTER  IV 

History  of  Pennsylvania'' s  Attempt  to  Prohibit  Special 

Municipal  Legislation  .  .  .  .  .44 

I     Constitutional  Convention  of  1872-73     .         44 

II     Legislative  Classification  of  Municipalities     49 

III     Decisions  of  the  Supreme  Court        .         .    50 

CHAPTER  V 

How  Shall  the  State  Control  Municipalities      .  .61 

239383 


CHAPTER  I. 

Special  Legislation— Its  Origin,  Growth 
and  Evils. 

I.— ORIGIN  OF  SPECIAL  LEGISLATION. 

Special  legislation  for  our  cities  is  in  part  an  inheritance  from  England, 
where  for  many  years  legislative  authority  has  been  highly  centralized.1  This 
centralization  results  in  part  from  the  fact  that  the  British  Parliament  has 
usually  been  very  tenacious  of  its  authority,  and  has  consequently  circum- 
scribed local  divisions  within  narrow  limits,  to  be  exceeded  only  by  its  own 
permission,  granted  in  special  acts.  From  early  times  the  theory  has  -pre- 
vailed that,  so  far  as  public  powers  are  concerned,  municipal  corporations 
are  merely  the  delegates  of  Parliament,  which  is  the  ultimate  source  of  all 
governmental  power. 

Hence  it  has  naturally  followed  that  the  powers  granted  by  Parliament 
to  municipalities  have  been  carefully  limited  and  minutely  specified.  Eng- 
lish legislation  has  never  attempted  merely  to  announce  principles, 
leaving  their  application  to  some  administrative  official  or  local  body;  on  the 
contrary  it  endeavors  to  foresee  all  possible  contingencies,  and,  by  leaving 
little  room  for  the  exercise  of  discretion  on  the  part  of  governmental  officers 
or  agencies,  seeks  to  remove  all  excuse  for  arbitrary  action.*  The 
English  Municipal  Code  contains  no  such  broad  grant  of  power 
as  is  conferred  "by  section  61  of  the  French  Code  of  1884,  which  de- 
clares:  "The  municipal  council  regulates  by  its  deliberations  the  affairs  of 
the  commune."  Thus  the  English  cities,  unlike  those  of  continental  Europe, 
are  and  have  always  been  authorities  of  enumerated,  rather  than  of  gen- 
eral, powers,  and  special  legislation  has  consequently  been  necessary  in  order 
to  meet  new  municipal  needs.3 

Thus  America  received  from  England  the  conception  of  the  city  as  a 
corporate  entity,  created  by  the  state  for  the  better  government  of  certain 

1.  Freund,  American  Administrative  Law,  Pol.  Sci.  Quar.  IX,  403,  409. 

2.  Arminjon,    L'Administration  Locale   de  L'Angleterre,  253. 

3.  De    Franqueville,   Le    Parlement   et   le    Gouvernement    Brittaniques,    III,    206-7. 
Concerning  this  point  the  author  says:      "Thus  local  authorities   are  obliged  to  have 

recourse  to  the  legislature  just  as  soon  as  they  wish  to  act  outside  of  the  compara- 
tively narrow  sphere  of  their  ordinary  powers.  .  .  .  Much  is  said,  and  with  reason, 
of  the  system  of  decentralization  which  leaves  to  local  authority  so  much  freedom  of 
action;  but  it  is  too  often  forgotten  that  there  is  a  central  control,  that  is,  the  power 
which  is  reserved  to  the  Legislature.  A  mayor  is  independent  of  the  executive  power 
to  a  very  large  degree,  but  neither  he  nor  his  municipal  council  can  authorize  a  company 
to  open  a  street  of  the  city  to  put  their  gas  or  water  pipes  there.  The  Metropolitan 
Board  of  Public  Works  of  London  could  not  place  upon  a  pedestal  an  Egyptian  obelisk 
which  was  offered  to  it,  nor  bind  itself  to  maintain  this  monument  without  obtaining  a 
private  bill;  and  when  it  asked  for  authorization  to  accept  in  the  future  gifts  of  this 
character,  and  the  power  to  maintain  them,  Parliament  absolutely  refused  its  permission." 

5 


:  foetrofegg  and  possessing  no  inherent  legislative  power.  Furthermore,  in 
passing  upon  the  question  of  municipal  powers,  American  courts 
have  accepted  the  rule  of  the  English  common  law  that  grants  of  municipal 
power  (like  all  grants  of  corporate  powers),  are  to  be  construed  strictly, 
doubtful  questions  of  authority  being  resolved  against  the  municipality.  Ac- 
cording to  the  highest  authority1  on  this  subject,  "a  municipal  corporation 
possesses  and  can  exercise  the  following  powers,  and  no  others:  First, 
those  granted  in  express  words;  second,  those  necessarily  or  fairly  im- 
plied in  or  incident  to  the  powers  expressly  granted;  third,  those  essential 
to  the  declared  objects  and  purposes  of  the  corporation — not  simply  con- 
venient, but  indispensable.  Any  fair,  reasonable  doubt  concerning  the 
existence  of  power  is  resolved  by  the  courts  against  the  corporation,  and  the 
power,  is  denied."2 

Hence  as  a  result  of  the  legislative  unwillingness  to  grant  large  powers 
to  cities,  and  of  the  legal  doctrine  of  strict  construction  of  municipal  powers, 
it  has  been  necessary  for  cities,  in  order  to  meet  new  municipal  needs  caused 
bj  municipal  growth  and  development,  to  apply  to  the  legislature  at  nearly 
every  session  for  special  acts,  granting  additional  powers. 

Especially  have  the  cities  been  obliged  to  make  frequent  application  for 
additional  financial  powers.  Taxation  and  loans  are  the  two  chief  sources 
of  municipal  revenue;  and,  as  to  the  first  of  these,  it  is  the  settled  rule  of 
the  common  law  that  without  special  authorization,  no  municipal  corporation 
may  levy  any  tax.3  As  to  the  second  source,  while  it  is  conceded  that  mu- 
nicipal corporations  may,  without  special  authorization,  incur  indebtedness 
to  be  paid  out  of  current  revenues,  it  is  held  by  the  weight  of  authority 
that  without  legislative  warrant  they  do  not  possess  the  power  to  borrow 
money  or  issue  bonds  as  evidences  of  indebtedness,  since  such  a  loan  is  in 
reality  a  tax,  and  therefore  requires  prior  legislative  authorization.* 

Thus  in  order  to  enlarge  either  of  these  two  chief  sources  of  income, 
cities  must,  as  a  rule,  apply  to  the  legislature  for  authority.  While  the  leg- 
islatures have  been  unwilling  to  grant  large  discretionary  powers  to  the  cities 
in  this  respect,  they  have  usually  been  prodigal  in  passing  special  acts  granting 
cities  the  desired  financial  powers.6  Ohio  furnishes  a  good  illustration  of  this 
legislative  policy.  The  "Act  to  provide  for  the  organization  of  Cities  and  In- 
corporated Villages,"  passed  May  3rd,  1852,6  was  a  general  act  for  the  govern- 
ment of  Ohio  cities,  passed  in  pursuance  of  constitutional  provisions  prohibiting 
special  legislation  for  municipalities.7    Twenty-two  sections  of  this  act  were 

1.  Dillon,  Municipal  Corporations,  3d  ed.,  I,  115. 

2.  Smith  v.  Newbern,  70  North  Car.  14;  s.  c,  16  Am.  R.  766;  Cook  County  v. 
McCrea,  93  111.  236.  Contra,  City  of  Crawfordsville  v.  Braden,  130  Ind.  149,  s.  c,  30 
Am.  R.  214:  a  recent  case  which  is  a  departure  from  the  rule  of  enumerated  powers 
and  strict  construction. 

3.  Cooley,   Taxation,  2nd  ed.,   329,   and   cases  cited. 

4.  Nashville  v.  Ray,  19  Wallace  468;  City  of  Brenham*  v.  German  American  Bank, 
144   U.    S.   173. 

5.  So  prodigal,  indeed,  tfhat  many  state  constitutions  now  contain  important  lim- 
itations upon  the  power  of  the  legislature  in  this  respect.  The  legislative  policy  has 
scarcely  justified  the  view  that  central  legislative  control  of  the  financial  powers  of  cities 
is  necessary  in  the  interests  of  the  state  as  a  whole,  as  a  bulwark  against  municipal 
extravagance.  See  the  act  of  the  Ohio  legislature  of  May  4,  1869  (66  Ohio  laws  80), 
authorizing  the  city  council  of  Cincinnati  to  borrow  twenty  million  dollars  to  establish  and 
maintain    a   railroad. 

6.  50   Ohio   Laws,    223-259. 

7.  Constitution  of  Ohio,  Art.  II,   Sec.  26;  Art.  XIII,  Sec.  1,  6. 


devoted  to  a  minute  specification  of  the  powers  of  cities.  The  power  of  tax- 
ation and  local  assessment  was  narrowly  limited,  while  the  power  to  borrow 
money  was  not  granted  at  all  (except  in  anticipation  of  the  revenue  of  the 
current  fiscal  year).  Having  been  disinclined  to  grant  adequate  financial 
powers  to  all  cities  by  the  act  of  1852,  the  legislature,  during  the  years  that 
followed,  found  itself  obliged  to  pass  many  special  acts  conferring  addi- 
tional financial  powers,  the  constitutional  prohibition  of  special  legislation  to 
the  contrary  notwithstanding.  Thus  from  1876  to  1892,  both  inclusive,  the 
Ohio  legislature  passed  a  total  of  1202  special  and  local  acts  affecting  mu- 
nicipal corporations,1  and  of  these,  1124,  or  93^2%  conferred  financial  powers. 
Ohio's  experience  seems  to  show  clearly  that  special  legislation  for  cities  is 
unavoidable  so  long  as  the  legislature  is  unwilling  to  entrust  the  cities 
with  large  powers,  especially  with  adequate  financial  powers. 

It  is  true  that  in  the  earlier  history  of  American  municipalities,  com- 
paratively large  powers  were  granted  by  the  state  to  city  councils,  but  an 
increasing  distrust  of  the  latter  bodies  led  to  a  gradual  withdrawal  of  the 
powers  which  they  formerly  possessed.  At  the  present  time  not  only  have 
most  councils  lost  their  former  power  of  organizing  and  appointing  the 
official  service  of  the  city — a  change  which  could  be  accounted  for,  at  least 
in  part,  by  the  democratic  movement  which  characterized  the  second  quarter 
of  the  nineteenth  century — but  many  of  their  earlier  legislative  and  financial 
powers  have  likewise  disappeared.  The  powers  thus  forfeited  by  council 
have  inured  to  the  benefit  of  the  state  legislature;  for  in  the  absence  of  a 
system  of  central  administrative  control,  when  council  control  was  dis- 
credited, central  legislative  control  became  inevitable. 

II.— EVILS  OF  SPECIAL  LEGISLATION. 

The  evils  of  special  legislation  are  numerous,  and  have  been  repeatedly 
and  forcibly  presented.2  One  of  the  chief  objections  to  such  legislation  is 
the  lack  of  adequate  knowledge  on  the  part  of  members  of  the  state  legis- 
lature of  the  needs  of  the  particular  locality  for  which  the  special  law  is 
designed.  The  result  of  this  ignorance  is  that  the  great  majority  of  legis- 
lators manifest  little  legitimate  interest  in  municipal  legislation,  and  such 
legislation  is  often  passed  perfunctorily  upon  the  recommendation  of  the 
members  from  the  particular  locality.  Thus  legislative  duty  is  delegated  to 
local  representatives  who  frequently  act  in  combination  with  the  sinister 
elements  in  their  constituencies.  But  this  power  for  evil  carries  with  it  no 
corresponding  degree  of  responsibility,  since  the  local  members  are  usually 
able  to  shift  upon  the  legislature  responsibility  for  improper  measures.  From 
this  condition  of  affairs  log-rolling  naturally  results — the  delegation  from 
one  city  supporting  legislation  brought  forward  by  another  local  delegation, 
in  return  for  similar  support  to  be  given  in  time  of  need. 

Moreover,  even  the  most  formal  consideration  of  innumerable  local  bills 
will   of  necessity   detract  greatly   from  the  time  and   attention  needed   for 

1.  Wilcox,    Municipal  Government  in  Michigan   and  Ohio,    79;  infra,  p.  30. 

2.  Dillon,  Municipal  Corporations,  3rd  ed.,  I,  59;  Bryce,  American  Commonwealth. 
I,  641;  40  N.  J.  L-,  1;  18  Albany  Law  J.,  407;  Debates  and  Proceedings  of  the  Ohio 
State  Convention  (1850),  I,  306,  309;  Proceedings  and  Debates  of  the  Third  Constitu- 
tional Convention  of  Ohio  (1873-74),  I,  581,  594;  II,  part  II,  1S18;  Debates  Pennsylvania 
Constitutional   Convention    (1873),   II,   589-622;  V,   248-267;  VII,   332-436. 


general  legislation.  Where  special  municipal  legislation  is  not  prohibited, 
the  legislature  is  usually  obliged  to  pass  upon  a  multitude  of  special  meas- 
ures relating  to  local  affairs.  Thus  in  Wisconsin  at  the  session  of  1885,  there 
were  passed  500  acts  relating  to  municipal  affairs,  filling  1342  pages  of  print, 
while  all  other  acts  of  that  year  fill  but  600  pages.  Kentucky  in  1890  passed 
176  public  and  1752  private  acts.  New  York  in  1870  passed  808  acts,  212  of 
which  relate  to  cities  and  villages,  and  occupy  over  three-fourths  of  the  2,000 
pages  of  the  laws  of  that  year.  In  the  six  years  from  1884  to  1889,  inclu- 
sive, New  York  passed  1284'  acts  relating  to  the  thirty  cities  of  that  state. 
In  one  year,  1886,  of  the  681  acts  on  all  subjects  passed  by  the  legislature, 
280,  or  about  forty  per  cent  of  the  total  number,  were  special  acts  conceriv 
ing  a  particular  city  or  village. 

Furthermore,  this  multiplicity  of  special  laws  is  itself  an  evil  of  serious 
magnitude,  since  it  greatly  impairs  the  value  of  judicial  construction.1  A 
decision  in  case  of  a  special  act  affecting  one  city  affords  no  safe  precedent 
in  the  case  of  a  different  act  affecting  another  city.  The  result  is  that  even 
the  most  skilled  lawyers  are  sometimes  unable  to  declare  what  the  law  is 
on  important  municipal  subjects.2  On  this  point  Chief  Justice  Church 
says :  "It  is  scarcely  safe  for  any  one  to  speak  confidently  on  the  exact 
condition  of  the  law  in  respect  to  public  improvements  in  the  cities  of  New 
York  and  Brooklyn.  The  enactments  referring  thereto  have  been  modified, 
superseded  and  repealed  so  often  and  to  such  an  extent  that  it  is  difficult 
to  ascertain  just  what  statutes  are  in  force  at  any  particular  time.  The 
uncertainties  arising  from  such  multiplied  and  conflicting  legislation  lead  to 
incessant  litigation  with  its  expensive  burdens,  public  and  private." 

Another  of  the  serious  evils  of  special  legislation  is  the  opportunity 
thereby  afforded  for  ripper  legislation.8  On  this  point  the  New  York  commis- 
sioners of  1876  declared:  "It  may  be  true  that  the  first  attempts  to  secure 
legislative  intervention  in  the  local  affairs  of  our  principal  cities  were  made 
by  good  citizens  in  the  supposed  interest  of  reform  and  good  government, 
and  to  counteract  the  schemes  of  corrupt  officials.  The  notion  that  legislative 
control  was  the  proper  remedy  was  a  serious  mistake.  The  corrupt  cliques 
and  rings  thus  sought  to  be  baffled  were  quick  to  perceive  that  in  the  busi- 
ness of  procuring  special  laws  concerning  local  affairs  they  could  easily  out- 
match the  fitful  and  clumsy  labors  of  disinterested  citizens.  The  transfer  of 
the  control  of  the  municipal  resources  from  the  localities  to  the  (State) 
capitol  had  no  other  effect  than  to  cause  a  like  transfer  of  the  methods 
and  arts  of  corruption,  and  to  make  the  fortunes  of  our  principal  cities 
the  traffic  of  the  lobbies.  Municipal  corruption,  previously  confined  within 
territorial  limits,  thenceforth  escaped  all  bounds  and  spread  to  every  quarter 
cf  the  State.  Cities  were  compelled  by  legislation  to  buy  lands  for  parks  and 
places  because  the  owners  wished  to  sell  them;  compelled  to  grade,  pave 
and  sewer  streets  without  inhabitants,  and  for  no  other  purpose  than  to 
award  corrupt  contracts  for  the  work.  Cities  were  compelled  to  purchase, 
at  the  public  expense,  and  at  extravagant  prices,  the  property  necessary  for 
streets  and  avenues,  useless  for  any  other  purpose  than  to  make  a  market  for 

1.  Debates  Ohio  Convention   (1850-51),  I,  309. 

2.  Debates    Ohio    Convention    (1873-74),    I,    594. 

3.  Goodnow,    Municipal    Home    Rule,    26-28. 

8 


the  adjoining  property  thus  improved.  Laws  were  enacted  abolishing  one 
office  and  creating  another  with  the  same  duties  in  order  to  transfer  official 
emoluments  from  one  man  to  another,  and  laws  to  change  the  functions  ot 
officers  with  a  view  only  to  a  new  distribution  of  patronage,  and  to  lengthen 
the  terms  of  offices  for  no  other  purpose  than  to  retain  in  place  officers 
who  could  not  otherwise  be  elected  or  appointed." 

Another  evil  resulting  from  the  constant  amendment  of  city  charters 
has  been  to  induce  an  undue  reliance  upon  legislative  mechanism  as  a 
remedy  for  political  ills.1  It  has  been  suggested  that  the  frequent  changes 
in  state  constitutions  constitute  one  reason  why  these  instruments  have  not 
teen  as  successful  as  the  national  constitution;  and  this  reasoning  applies  with 
even  greater  force  to  city  charters,  amended  as  they  frequently  are  at  every 
legislative  session.  Thus  it  becomes  impossible  for  any  framework  of 
municipal  government  to  be  fairly  tested  upon  its  merits;  and  furthermore, 
citizens  become  too  prone  to  rely  upon  legislative  enactment  to  remedy 
their  own  political  heedlessness. 

The  last,  and  perhaps  the  most  serious  objection  to  special  municipal 
legislation  is,  that  it  almost  inevitably  involves  destruction  of  home  rule  and 
local  autonomy.  In  controlling  the  affairs  of  cities,  state  legislatures  have 
usually  failed  to  distinguish  between  the  public  and  private  character  of  the 
municipal  corporation.  In  its  public  or  governmental  character  the  municipal 
corporation  represents  the  state,  by  which  it  is  entrusted  with  the  perform- 
ance in  a  particular  locality  of  certain  public  or  governmental  functions — such 
as  certain  police  and  taxing  powers,  the  administration  of  justice  and  of  the 
schools,  control  of  elections  and  of  the  public  health  and  the  support  of  the 
poor.  On  the  other  hand,  in  its  private  or  proprietary  character  the  munici- 
pality is  an  organ  for  the  satisfaction  of  local  needs — such  as  the  construction 
of  sewers,  paving,  cleaning  and  lighting  of  streets,  furnishing  adequate 
water  supply,  administration  of  parks,  regulation  of  municipal  transportation- 
matters  which  interest  the  state  only  indirectly,  but  which  are  of  vital  local 
concern  and  should  be  left  to  local  regulation.  But  the  state  legislatures,  ac- 
customed habitually  to  regulate  municipal  corporations  upon  their  public 
side,  have  formed  the  habit  of  interfering  upon  their  private  side  as  well. 
Upon  this  point  Professor  Goodnow  says:  "Our  legislatures  have  made  use 
of  their  large  powers  over  cities  to  regulate  in  detail  all  the  actions  of  cities, 
thus  reducing  them  to  the  position  of  mere  agents  of  general  state  ad- 
ministration."2 

Such  interference  in  affairs  purely  local  is  legally,  if  not  morally,  per- 
missable;  for  while  from  the  standpoint  of  their  contractual  obligations  and 
property  rights,  municipal  corporations  are  in  a  quasi-private  position,  they 
are  not  free  from  legislative  interference  and  control  within  this  sphere.* 
That  is  to  say,  in  their  private  character,  municipalities  are  subject  to  the 
liabilities  of  individuals,  but  they  do  not  enjoy  the  benefit  of  the  constitu- 
tional protection  afforded  private  rights. 

As  a  result  of  this  failure  of  the  legislatures  to  grant  municipalities  a 
sphere  of   independent  action   in  local   matters,   central   control   has   largely 

1.  Debates    Ohio   Convention,   1873-74,   I,   590-592;    idem,    II,   part   II,   1319. 

2.  Goodnow,    Municipal    Problems,    81.  * 
.3.     Except  by   specific  constitutional  provision. 

9 


destroyed  local  autonomy.  Thus  state  legislatures  habitually  interfere  to 
control  municipal  parks,  to  regulate  transportation  within  cities,  to  grant 
valuable  municipal  franchises,  regulate  the  salaries  of  municipal  officers,  and 
to  provide  for  the  paving  of  certain  streets  and  the  construction  of  specific 
sewers.  Laws  have  even  been  sustained  compelling  municipalities  to  pay 
debts  which  had  been  declared  not  legally  binding,1  as  well  as  measures 
obliging  them  to  incur  debts  against  their  will,  and  that  too,  for  non- 
municipal  purposes,  such  as  the  aiding  of  railroads.*  Against  this  last  evil 
the  cities  of  some  states  are  protected  by  constitutional  provisions  forbid- 
ding them  to  incur  debts  for  any  purpose  beyond  a  certain  amount,  usually 
a  percentage  of  the  assessed  value  of  the  property  within  their  limits,  and 
prohibiting  them  from  incurring  any  debts  at  all  in  aid  of  any  private  cor- 
poration.' 

The  result  of  this  condition  of  affairs  is  well  described  in  the  report  of 
the  Fassett  Committee:4  "The  situation  then  is  as  follows:  That  it  is  fre- 
quently impossible  for  the  legislature,  the  municipal  officers,  or  even  for  the 
courts,  to  tell  what  the  laws  mean ;  that  it  is  usually  impossible  for  the  legis- 
lature to  tell  what  the  probable  effect  of  any  alleged  reform  in  the  laws  is 
likely  to  be ;  that  it  is  impossible  for  any  one,  either  in  private  life  or  in  pub- 
lic office,  to  tell  what  the  exact  business  condition  of  any  city  is,  and  that 
municipal  government  is  a  mystery  even  to  the  experienced;  that  municipal 
officers  have  no  certainty  as  to  their  tenure  of  office;  that  municipal 
officers  can  escape  responsibility  for  their  acts  or  failures  by  securing  amend- 
ments to  the  law;  that  municipal  officers  can  escape  responsibility  to  the 
public  on  account  of  the  unintelligibility  of  the  laws,  and  the  insufficient 
publicity  of  the  facts  relating  to  municipal  government;  that  local  author- 
ities receive  permission  to  increase  the  municipal  debt  for  the  performance 
of  public  work  which  should  be  paid  for  out  of  taxes;  that  the  conflict  of 
authority  is  sometimes  so  great  as  to  result  in  a  complete  or  partial  par- 
alysis of  the  service;  that  our  cities  have  no  real  local  autonomy;  that  local 
self-government  is  a  misnomer;  and  that  consequently  so  little  interest  is  felt 
in  matters  of  local  business  that  in  almost  every  city  in  the  state  it  has  fal- 
len into  the  hands  of  professional  politicians." 

1.  Lycoming  v.  Union,  15  Pa.  St.  166;  Hasbrouck  v.  Milwaukee,  21  Wis.  217;  New 
Orleans  v.  Clark,  95  U.  S.  644;  People  v.  Lynch,  51  Cal.  15;  People  v.  Supervisors,  70 
N.   Y.  228;  Nevada  v.  Hampton,  13  Nev.  441. 

2.  See  Perkins  v.  Slack,  86  Pa.  St.  283;  People  v.  Batchellor,  53  N.  Y.  128;  Du- 
anesburgh  v.  Jenkins,   57  N.   Y.  177;   Cooley,  Taxation,  699. 

3.  Const.   o£   New  York.  Art.    VIII,    Sec.    10. 

4.  Report  made  in  1891  on  the  government  of  cities  in  New  York:  Senate  Com- 
mittee's  Report,   V,  13. 


10 


CHAPTER  II. 


Constitutional  Limitations  upon  Legislative 
Control  of  Municipalities. 


Recognizing  the  evils  of  excessive  legislative  intervention  in  local  af- 
fairs, and  the  desirability  of  safe-guarding  certain  rights  of  local  self-govern- 
ment, most  of  the  states  have  placed  in  their  constitutions  provisions  de- 
signed to  accomplish  these  ends.  The  most  important  of  these  constitutional 
limitations  may  be  classified  under  the  following  heads.  (i)  Those  for- 
bidding the  incorporation  of  cities  (and  frequently  also  of  towns)  by  special 
act.  (2)  Requiring  the  legislature  specifically  to  pass  general  acts  of  in- 
corporation for  municipalities  (a  provision  frequently  found  in  conjunction 
with  the  foregoing).  (3)  Forbidding  the  legislature  to  enact  certain  meas- 
ures concerning  municipalities,  or  prohibiting  them  from  acting,  in  specified 
cases,  by  local  or  special  law.  (4)  Forbidding  the  delegation  to  special  com- 
missions of  power  to  control  municipal  affairs,  and  ensuring  the  local  election 
of  local  officers.  (5)  Limiting  the  number  of  classes  of  cities  which  may 
be  created.  (6)  Preventing  frequent  changes  in  the  structure  of  city  gov- 
ernment by  enacting,  in  the  state  constitution,  a  frame-work  of  municipal 
government.  (7)  Granting  cities  of  a  certain  population  the  right  to  frame 
and  amend  their  own  charters. 

(1)  Twenty-three  states  have  adopted  the  first  type  of  the  above  en- 
umerated constitutional  provisions,  and  have  forbidden  their  legislatures  to 
pass  special  acts  for  the  incorporation  of  cities,  (and  frequently,  of  towns 
also).  These  states  are  Alabama,1  Arkansas,2  California,8  Illinois,4  Indiana,8 
Iowa,6  Kansas,7  Kentucky,8  Louisiana,9  Mississippi,10  Missouri,11  Nebraska,1' 
New    Jersey,18    North    Dakota,14    Ohio,16    Pennsylvania,18    South    Carolina,17 

1.  Constitution,  IV,   Sec.   104,  par.   5,  also  XII,   Sec.  229. 

2.  Constitution,  XII,   Sec.    2. 

3.  Constitution,  XI,   Sec.   6. 

4.  Constitution,  IV,    Sec.   22. 

5.  Constitution,  XI,    Sec.   13. 

6.  Constitution,  III,    Sec.   20. 

7.  Constitution,  XII,   Sec.    1. 

8.  Constitution,  Sec.   59,  par.  17. 

9.  Constitution,  Sec.  48.  This  excepts  municipal  corporations  of  less  than  2,500  in- 
habitants,  and   levee  districts   and   parishes. 

10.  Constitution,  VII,   Sec.   178. 

11.  Constitution,  IV,   Sec.  53. 

12.  Constitution,  III,   Sec.  15. 

13.  Constitution,  Amend,  of  1875,    IV,   Sec.    7,  par.   9  and   11. 

14.  Constitution,  II,    Sec.   69,   par.   33. 

15.  Constitution,  XIII,   Sec.  1. 

16.  Constitution,  III,  Sec.  7. 

17.  Constitution,  III,   Sec.   34,   par.   3. 

11 


South     Dakota,1     Tennessee,2     Washington,3     West     Virginia,4     Wisconsin/ 
Wyoming.6 

This  inhibition  of  local  or  special  legislation  is  frequently  expressed 
in  the  following  terms:  "The  general  assembly  shall  not  pass  local  or 
special  laws  in  the  following  cases :  *  *  *  For  the  incorporation  of  cities 
and  towns."7 

Of  the  twenty-three  states  which  forbid  the  incorporation  of  cities  by 
special  act,  the  constitutions  of  fifteen8  specifically  extended  the  prohibition  to 
include  changes  or  amendments  in  city  charters.  Of  these  the  provision 
contained  in  the  constitution  of  Nebraska  is  typical:  "The  legislature 
shall  not  pass  local  or  special  laws  in  any'  of  the  following  cases,  that 
is  to  say :  Incorporating  Cities,  Towns  and  Villages,  or  changing  or  amend- 
ing the  charter  of  any  Town,  City  or  Village."9 

As  a  rule,  however,  even  when  not  specially  prohibited,  acts  amend- 
ing municipal  charters  are  held  by  the  courts  to  be  within  the  scope  of  the 
prohibition  of  special  acts  of  incorporation. 

In  the  constitutions  of  seven  states,10  instead  of  the  prohibition  of  special 
acts  incorporating  cities,  there  is  a  general  limitation  forbidding  the  con- 
ferring of  corporate  power  by  special  act.  Thus  the  constitution  of  Kansas 
provides:  ''The  legislature  shall  pass  no  special  act  conferring  corporate 
powers."11  Generally  the  courts  have  held  that  the  term  "corporation"  as 
here  used  includes  municipal  as  well  as  private  corporations;  and  hence 
this  provision  has  the  same  effect  as  the  more  common  one  which  specifically 
forbids  the  incorporating  of  cities  by  special  act.12 

(2)  Twenty-three  states,  including  many  of  those  which  have  prohib- 
ited special  acts  incorporating  municipalities,  have  adopted  the  second  type 
cf  limitation,  requiring  the  legislature  to  pass  general  acts  of  incorporation 
for  municipalities.  A  typical  provision  is  that  in  the  constitution  of  South 
Carolina :  "The  General  Assembly  shall  provide  by  general  laws  for  the 
organization  and  classification  of  municipal  corporations."18  The  states  whose 
constitutions  contain  this  provision  are:  Alabama,1*  Arkansas,15  California,1* 

1.  Constitution,   III,    Sec.   23. 

2.  Constitution,   XI,   Sec.    8. 

3.  Constitution,  II,  Sec.  28,  par.  8,  also  XI,  Sec.  10. 

4.  Constitution,  VI,   Sec.  39,  par.   8. 

5.  Constitution,  Amend.  IV,  Sec.  31. 

6.  Constitution,  III,  Sec.  27. 

7.  Constitution  of   Iowa,    III,    Sec.    30. 

8.  Illinois,  Kentucky,  Louisiana,  Missouri,  Nebraska,  North  Dakota,  Pennsylvania, 
South  Carolina,  South  Dakota,  Tennessee,  Texas,  Washington,  West  Virginia,  Wiscon- 
sin,   Wyoming. 

9.  Constitution,   III,   Sec.   15. 

10.  These  are:  Arkansas,  Indiana,  Kansas,  Louisiana,  New  Jersey,  Ohio,  Ten- 
nessee. 

11.  Constitution,    XII,    Sec.    1. 

12.  Atchison  v.  Bartholow,  4  Kansas  124;  Wyandotte  City  v.  Wood,  5  Kansas  603; 
Topeka  v.  Gillett,  32  Kansas  431;  The  State  ex  rel.  v.  the  City  of  Cincinnati,  20  Ohio 
State  18;  The  State  ex  rel.  v.  Mitchell,  31  Ohio  State,  592;  see  also  State  v.  Newark, 
40   N.   J.   Law,  550. 

13.  Constitution,   VIII,  Sec.  1. 

14.  Constitution,    IX,    Sec.    104,  par.    5,    also   XII,    Sec.    229. 

15.  Constitution,    XII,    Sec.    3. 

16.  Constitution,    XI,    Sec.   6. 

12 


Colorado,1  Idaho,2  Iowa,3  Kansas,4  Kentucky,6  Mississippi,6  Missouri/ 
Nebraska,8  Nevada,9  New  Jersey,10  North  Dakota,11  Ohio,12  South  Caro- 
lina,13 South  Dakota,14  Texas,18  Virginia,16  Washington,17  W^st  Virginia,18 
Wisconsin,19  Wyoming.20 

(3)  The  constitutions  of  certain  states  either  absolutely  forbid  the 
legislature  from  enacting  certain  measures  concerning  municipalities,  or 
prohibit  them  from  acting,  in  certain  specified  cases,  by  local  or  special  law. 
Thus  the  constitutions  of  California,21  Illinois,22  and  Washington,28  deny  the 
legislature  the  power  to  tax  municipal  corporations,  or  the  inhabitants  or 
property  thereof,  for  municipal  purposes. 

Another  frequent  limitation  provides  that  the  legislature  may  not,  by 
special  acts,  divide  counties  or  change  county  seats;  and  frequently  such 
action  is  entirely  forbidden  without  the  consent  of  the  electors  of  the 
county.24  Another  inhibition  frequently  found  is,  that  the  legislature  shall 
not,  by  special  act,  open  or  vacate  streets,  or  highways.  Again,  the  abuse 
by  state  legislatures  of  the  franchise-granting  power  has  led  to  the  inser- 
tion in  many  constitutions  of  a  provision  forbidding  the  granting  of  street 
railway  franchises  by  special  act;  or,  frequently,  forbidding  such  grant 
without  the  consent  of  the  local  authorities.25 

(4)  A  fourth  form  of  constitutional  limitation  seeks  to  secure  for  the 
municipalities  certain  rights  of  local  self-government  either  by  forbidding, 
the  legislature   to   delegate   control   over  municipal   affairs   to   special   com- 

1.  Constitution,  XIV,   Sec.   13. 

2.  Constitution,  XII,  Sec.   1. 

3.  Constitution,  VIII,    Sec.    1. 

4.  Constitution,  XII,    Sec.    5. 

5.  Constitution,  Sec.   156. 

6.  Constitution,  IV,   Sec.  88,  also  VII,  Sec.  178. 

7.  Constitution,  IX,  Sec.  7. 

8.  Constitution,  XI,    (*o),   Sec.    1. 

9.  Constitution,  VIII,   Sec.   8. 

10.  Constitution,    Article   of  Amend.   IV,    Sec.   7,    par.    11. 

11.  Constitution  VI,    Sec.   130. 

12.  Constitution  XIII,  Sec.  '6. 

13.  Constitution,   VIII,    Sec.    1. 

14.  Constitution,  X,   Sec.    1. 

15.  Constitution,  XI,    Sec.    4,  5. 

16.  Constitution,    VIII,    Sec.   117. 

17.  Constitution,   XI,    Sec.   10. 

18.  Constitution,  XI,   Sec.   1. 

19.  Constitution,  Amend,  IV,   Sec.   32. 

20.  Constitution,  XIII,  Sec.  1.  In  Wyoming,  as  in  Massachusetts  and  South  Car- 
olina, the  consent  of  a  majority  of  the  electors  of  the  district  is  required  for  its  incor- 
poration  as   a  municipality. 

21.  XI,  Sec.  12. 

22.  XIX,    Sec.    10. 
83.     XI,    Sec.    12. 

24.  Arkansas,  XIII,  Sec.  3,  4;  California,  XI,  Sec.  2;  Colorado,  XIV,  Sec.  3; 
Georgia,  XI,  Sec.  1,  par.  3,  4;  Idaho,  XVIII,  Sec.  3;  Illinois,  X,  Sec.  2;  Iowa,  III, 
Sec.  30;   Kansas,  XIX,   Sec.   1;  Kentucky,  Sec.  64. 

25.  These  states  are:  Alabama,  XII,  Sec.  220;  Colorado,  V.  Sec.  25,  and  XV,  Sec. 
11;  Georgia,  III,  Sec.  7,  par.  20;  Idaho,  XI,  Sec.  11;  Illinois,  IV,  Sec.  22,  and  XI,. 
Sec.  4;  Kentucky,  Sec.  59,  par.  19;  Louisiana,  Art.  48;  Mississippi,  Sec.  90  (r);  Mis- 
souri, IV,  Sec.  53;  Montana,  VI,  Sec.  26;  Nebraska,  III,  Sec.  15,  and  XI  (b),  Sec.  2;  New 
Jersey,  IV,  Sec.  7,  par.  11;  North  Dakota,  II,  Sec.  69,  par.  20;  Pennsylvania,  III,  Sec. 
7;  South  Carolina,  VIII,  Sec.  4;  South  Dakota,  X,  Sec.  3;  Virginia,  VIII,  Sec.  124?. 
West  Virginia,  XI,   Sec.  5;  Wyoming,  XIII,   Sec.   4,  and  III,   Sec.  27. 

13 


missions  or  boards,  or  by  providing  for  the  election  of  all  or  certain  local 
officers  by  the  people  of  the  localities.1  Thus  Philadelphia's  interesting 
experience  with  the  City  Hall  Building'  led  to  the  insertion  in  Pennsyl- 
vania's present  constitution  of  a  provision  typical  of  that  found  in  many 
other  state  constitutions:  "The  General  Assembly  shall  not  delegate  to  any 
special  commission,  private  corporation  or  association,  any  power  to  make, 
supervise  or  interfere  with  any  municipal  improvement,  money,  property  or 
effects  whether  held  in  trust  or  otherwise,  or  to  levy  taxes  or  perform  any 
municipal  function  whatever."* 

One  of  the  most  interesting  decisions  upon  the  right  of  local  self-govern- 
ment, in  which  it  was  held  to  be  beyond  the  power  of  the  state  legislature  to 
create  a  special  municipal  commission  with  plenary  power  to  compel  a  city 
to  issue  its  bonds  for  park  purposes,  is  the  leading  case  of  People  ex  ret. 
Park  Commrs.  v.  Common  Council  of  Detroit.*  The  statute  whose  con- 
stitutionality was  involved  in  this  case  created  a  Board  of  Park  Commission- 
ers for  the  city  of  Detroit,  and  also  named  the  commissioners,  invested  them 
with  power  to  purchase  the  necessary  lands,  at  a  cost  not  exceeding 
three  hundred  thousand  dollars,  and  imperatively  required  the  city  council  to 
provide  money  therefor  by  the  issue  and  sale  of  city  bonds.  The  Supreme 
Court  held  that  the  city  could  not  be  compelled,  against  the  will  of  its  council, 
to  issue  the  bonds;  and  the  decision  was  based  upon  the  ground  that  a  park 
was  purely  a  matter  of  local,  as  distinguished  from  state,  concern;  and  that  it 
was  beyond  the  power  of  the  legislature  to  compel  a  municipality  to  contract 
a  debt  for  local  purposes. 

In  the  opinion  rendered  by  Cooley,  J.,  the  court  declared:  "It  is  a 
fundamental  principle  in  this  state,  recognized  and  perpetuated  by  express 
provision  of  the  constitution,  that  the  people  of  every  hamlet,  town  and  city 
of  the  state  are  entitled  to  the  benefits  of  local  self-government.  But  au- 
thority in  the  legislature  to  determine  what  shall  be  the  extent  of  the 
capacity  in  a  city  to  acquire  and  hold  property  is  not  equivalent  to,  and 
does  not  contain  within  itself,  authority  to  deprive  the  city  of  property 
actually  acquired  by  legislative  permission.  As  to  property  it  thus  holds 
for  its  own  private  purposes,  a  city  is  to  be  regarded  as  a  constituent  in 
state  government,  and  is  entitled  to  the  like  protection  in  its  property  rights 

1.  Limitations  of  this  type  are  found  in  the  following  constitutions:  Arkansas, 
VII,  Sec.  17,  19,  24,  29,  38,  46,  47;  California,  IV,  Sec.  25,  par.  9,  XI,  Sec.  13;  Col- 
orado, V,  Sec.  35,  XIV,  Sec.  6,  8,  11;  Connecticut,  Amendments  X,  XXI,  XXVIII; 
Florida,  V,  Sec.  15,  16,  VIII,  Sec.  6;  Georgia,  XI,  Sec.  2,  par.  1;  Idaho,  III,  Sec.  19, 
VII,  Sec.  6,  XVIII,  Sec.  6;  Illinois,  IV,  Sec.  22,  X,  Sec.  6,  8;  Indiana,  IV,  Sec.  22, 
VI,  Sec.  2,  3,  4;  Kansas,  III,  Se,c.  5,  7,  8,  9;  Kentucky,  Sec.  97  to  100,  and  160;  Mary- 
land,  IV,  Sec.  44,  VII,  Sec.  1;  Massachusetts,  Articles  of  Amendment,  XIX;  Michigan, 
X,  Sec.  3,  XI,  XV,  Sec.  14;  Minnesota,  XI,  Sec.  4;  Mississippi,  VI,  Sec.  170,  171, 
Missouri,  IX,  Sec.  10;  Montana,  V,  Sec.  26,  36,  XVI,  Sec.  2-5;  Nebraska,  III,  Sec.  15, 
X,  Sec.  4;  Nevada,  IV,  Sec.  20,  26,  32;  New  Hampshire,  Art.  71;  New  Jersey,  IV,  Sec. 
7,  par.  11;  New  York,  X,  Sec.  1,  2;  North  Carolina,  IV,  Sec.  24,  VII,  Sec.  1  to  7; 
North  Dakota,  II,  Sec.  69,  par.  32,  34;  Ohio,  X;  Oregon,  VI,  Sec.  6,  VII,  Sec.  15,  16, 
17;  Pennsylvania,  III,  Sec.  7,  20,  V,  Sec.  11;  XIV,  XV,  Sec.  2;  South  Carolina,  V, 
Sec.  27,  29,  30;  South  Dakota,  IX;  Tennessee,  VIII,  Sec.  1,  2;  Texas,  III,  Sec.  56, 
V,  Sec.  20,  21,  23,  VIII,  Sec.  14,  XVI,  Sec.  44;  Vermont,  Articles  of  Amendment, 
14-18;  Virginia,  VII,  Sec.  110,  111,  VIII,  Sec.  118-121;  Washington,  XI,  Sec.  5,  12; 
West  Virginia,  IX,  Sec.  1,  2;  Wisconsin,  VI,  Sec.  4,  VII,  Sec.  12,  14,  15,  XIII,  Sec.  9; 
Wyoming,  III,   Sec.   27,  XII,   Sec.  5. 

2.  On  the  subject  of  this  commission,  see  Dillon,  Municipal  Corporations,  4th  ed., 
I,  p.  128;  also  the  ruling  of  the   Supreme  Court   in   Perkins  v.   Slack,  86  Pa.   St.,  283. 

3.  Pennsylvania   Constitution,    III,    Sec.   20. 

4.  28   Mich,    228;   s.    c,    15    Am.    Rep.    202. 

14 


as  any  natural  person  who  is  also  a  constituent.  The  right  of  the  state 
is  a  right  of  regulation,  not  of  appropriation.  It  cannot  be  deprived  of 
such  property  without  due  process  of  law.  And  when  a  local  convenience 
or  need  is  to  be  supplied,  in  which  the  people  of  the  state  at  large,  or  any 
portion  thereof  outside  the  city  limits,  are  not  concerned,  the  state  can  no 
more  by  process  of  taxation  take  from  the  individual  citizens  the  money  to 
purchase  it,  than  they  could,  if  it  had  been  procured,  appropriate  it  to  state 
use.  *  *  *  From  the  very  dawn  of  our  liberties  the  principle  most  un- 
questionable of  all  has  been  this:  "That  the  people  shall  vote  the  taxes  they 
are  to  pay,  or  be  permittted  to  choose  representatives  for  the  purpose." 

As  to  the  local  election  of  certain  officers,  most  state  constitutions  pro- 
vide that  there  shall  be  elected  in  each  county,  by  the  qualified  voters  thereof, 
certain  local  officers — those  most  commonly  named  being  the  county  sheriff, 
constable,  prosecuting  attorney,  justice  of  the  peace,  coroner,  probate  judge, 
clerk  of  court,  treasurer,  auditor,  etc.1 

(5)  The  failure  of  the  first  type  of  constitutional  provision  described 
above  to  prevent  legislative  interference  with  cities,  partly  owing  to  the 
narrow  interpretation  given  by  the  courts  to  the  term  "special  act,"*  has 
led  several  states  to  insert  in  their  constitutions  a  provision  limiting  the 
number  of  classes  which  the  legislature  may  create.  To  this  limitation  is 
added  the  restriction  that  "the  powers  of  each  class  shall  be  defined  by 
general  laws,  so  that  all  municipal  corporations  of  the  same  class  shall  pos- 
sess the  same  powers,  and  be  subject  to  the  same  restrictions."3  Thus  the 
constitutions  of  Colorado,4  Missouri,0  South  Dakota,6  and  Wyoming,7  limit 
the  maximum  number  of  classes  to  four.  Kentucky8  places  the  limit  at  six, 
New  York9  at  three;  and  the  constitutions  of  both  these  states  also  fix  the 
population  included  within  the  various  classes. 

(6)  In  two  states  frequent  changes  in  the  structure  of  municipal 
government  have  been  avoided  to  a  certain  extent  by  inserting  in  the  state 
constitution  a  framework  of  municipal  organization.  Thus  Virginia^  devotes 
nearly  six  pages  of  her  state  constitution10  to  a  detailed  plan  for  the  structure 
of  municipal  government,  providing  for  the  election  and  term  of  municipal 
officers,  the  powers  and  duties  of  the  mayor,  the  election  and  term  of  mem- 
bers of  council,  the  mode  of  enacting  ordinances  and  granting  franchises, 
etc.     Similarly  the  constitution  of  Maryland  contains  several  provisions  re- 

1.  Under  a  constitutional  provision  that  "judicial  officers  of  cities  and  villages 
shall  be  elected  and  all  other  officers  shall  be  elected  or  appointed  at  such  time  and  in 
such  manner  as  the  legislature  may  direct"  (Const,  of  Mich.,  XV,  Sec.  14),  the  Su- 
preme Court  held  that  the  legislature  was  restrained  from  itself  directly  appointing 
municipal  officers  whose  duties  and  authority  were  plainly  and  exclusively  local,  such 
as  the  board  of  water  commissioners  for  a  particular  city.  People  v.  Hurlbut,  24  Mich. 
44;  s.  c,  9  Am.  Rep.  48.  Similar  decisions  are:  Chicago  v.  Wright,  69  111.  326;  Peo- 
ple v.  Draper,   15  N.  Y.  543;   Speed  v.  Crawford,  3  Met.   (Ky.)   207. 

2.  The  courts  have  held  that  an  act  is  not  special  which  at  the  time  of  its  pass- 
age includes  but  one  city,  providing  others  may  eventually  be  included  within  its 
scope.       See  infra,  p.  39. 

3.  Constitution  of   Colorado,    XIV,    Sec.   13. 

4.  Constitution,  XIV,    Sec.    13. 

5.  Constitution,  IX,   Sec.   7. 

6.  Constitution,  X,   Sec.  1. 

7.  Constitution,  XIII,  Sec.    1. 
8.1  Constitution,  Sec.  156. 

9.     Constitution,    XII,    Sec.    2. 
10.     Constitution,  VIII,  Sec.  116-128. 


15 


lative  to  the  mayor  and  council  of  the  city  of  Baltimore.1 

(7)  Certain  states,  realizing  that  the  supposed  necessity  for  special 
municipal  legislation  results  from  imperfections  in  the  legislative  grant  of 
power  to  cities,  have  concluded  that  the  remedy  for  this  condition  is  in 
granting  larger  powers  to  the  municipalities.  Accordingly  five  states- 
California,  Colorado.  Minnesota,  Missouri  and  Washington — have  inserted' 
in  their  constitutions  provisions  allowing  cities  of  a  certain  size  to  frame 
and  amend  their  own  charters,  provided  such  charters  and  amendments  are 
consistent  with  the  constitution  and  general  laws  of  the  state.2 

Thus  the  constitution  of  California,  whose  provisions  are  typical  in 
this  respect,  provides  that  any  city  containing  a  population  of  over  3,50a 
inhabitants8  may  frame  a  charter  for  its  own  government  consistent  with 
and  subject  to  the  constitution  and  laws  of  the  state.  At  any  general  or 
special  election,  the  qualified  voters  of  such  city  may  elect  a  board  of 
fifteen  freeholders,  who  must  have  been  for  at  least  five  years  qualified 
electors  of  the  city.  It  is  the  duty  of  this  board  within  ninety  days  after 
its  election  to  prepare  and  propose  a  charter  for  the  city.  Such  proposed 
charter  is  then  to  be  published,  for  at  least  twenty  days,  in  two  daily  news- 
papers of  general  circulation  in  the  city;  and  within  not  less  than  thirty- 
days  after  such  publication,  it  must  be  submitted  to  the  electors  of  the  city 
at  a  general  or  special  election.  If  ratified  by  a  majority  of  the  electors, 
it  is  then  submitted  to  the  legislature4  for  approval  or  rejection  as  a  whole, 
power  of  alteration  or  amendment  being  denied  that  body.  If  approved  by 
the  legislature  it  then  becomes  the  charter  of  the  city,  and  the  courts  are  re- 
quired to  take  judicial  notice  thereof. 

Provision  is  made  for  the  amendment  of  the  charter  thus  adopted  at  in- 
tervals of  not  less  than  once  in  two  years.  Upon  petition  of  fifteen  per  cent, 
of  the  qualified  voters,  it  is  the  duty  of  the  legislative  authority  of  the  city  to 
submit  to  the  voters  the  amendments  petitioned  for.  Such  amendments  are 
then  published  and  voted  upon,  and  if  accepted  by  the  electors  of  the  city,, 
and  subsequently  ratified  by  the  legislature,  they  become  an  integral  part 
of  the  charter. 

In  none  of  these  five  states,  so  far  as  can  be  ascertained,  have  state 
interests  in  any  way  suffered  through  the  large  degree  of  self-government 
granted  to  the  cities.  In  Minnesota  ten  cities  have  formed  charters  under 
this  constitutional  provision — these  cities  being  Ely,  Willmar,  Fairmont, 
Fergus  Falls,  Austin,  Duluth,  St.  Paul,  Blue  Earth,  Moorhead  and  Barnes- 
ville.  In  Oregon  a  proposed  constitutional  amendment  permitting  cities  and 
towns  to  frame  charters  for  their  own  government  was  adopted  by  the  legis- 
lative assemblies  of  1901  and  1903,  but  no  provision  has  been  made  for  its 
submission  to  the  voters  for  final  adoption  or  rejection.6 

1     Constitution,  XI,   Sec.   1-9. 

2.  California,  XI,  Sec.  8-8J4;  Colorado,  XX,  Sec.  4-6;  Minnesota,  IV,  Sec.  36; 
Missouri,  IX,   Sec.  16-17;  Washington,  XI,  Sec.   10. 

3.  In  Colorado  this  privilege  is  granted  to  first  and  second  class  cities;  in  Mis- 
souri to  cities  with  over  100,000  inhabitants;  in  Washington  to  cities  with  over  20,000' 
inhabitants. 

4.  Colorado,  Minnesota,  Missouri  and  Washington  do  not  require  legislative  ac- 
ceptance of  the  charter  adopted. 

5.  For   a  further  discussion   of  this   topic,  see   infra,  p.   62. 

16   * 


CHAPTER  III. 


History  of  Ohio's  Attempt  to  Prevent 
Special  Municipal  Legislation. 

I— CONSTITUTIONAL  CONVENTION  OF  1851. 


Ohio's  first  constitution,  adopted  in  1802,  placed  no  restrictions  upon 
legislation  for  municipalities,  except  that  a  certain  measure  of  home  rule 
was  assured  by  Sections  i  and  3  of  Article  6,  guaranteeing  the  inhabitants 
of  counties,  towns  and  townships  the  right  to  elect  their  own  officers.  In 
the  early  part  of  the  century  the  population  of  the  state  was  so  largely  rural 
that  municipalities  and  their  governing  was  a  comparatively  unimportant  mat- 
ter. But  by  the  middle  of  the  century  conditions  were  changing.  Ohio's 
population  of  50,000  at  the  beginning  of  the  century  had  increased  to  almost 
2,000,000.  With  the  development  of  industry,  new  towns  were  coming  into 
existence.  By  1850  there  were  eleven  towns  of  over  5,000  inhabitants,  and 
their  aggregate  population  was  205,354.  Each  town  was  incorporated  by  a 
special  act  or  charter,  and  from  time  to  time  supplementary  special  acts  would 
be  passed,  designed  to  advance  its  interests.  By  the  middle  of  the  century 
the  attention  of  the  legislature  was  being  largely  occupied  with  municipal  af- 
fairs— thus  at  the  session  of  1849-50,  73  acts  were  passed  relating  to  towns 
and  cities. 

Corporate  enterprises  were  likewise  developing  with  great  rapidity. 
Railway  companies,  canal  companies,  turnpike  companies — companies  of 
every  description  were  being  promoted,  each  of  which  sought  to  obtain 
advantageous  charter  privileges  from  the  state  legislature.  At  the  ses- 
sion of  1849-50,  a  total  of  545  local  and  special  lacts  were  passed,  78  of 
which  related  to  turnpike  roads,  75  to  plank  roads,  and  67  to  railway  com- 
panies. Such  a  development  of  corporate  enterprises  was  of  course  ex- 
cessive, and  since  it  involved  the  commmunity  at  large  in  serious  financial 
loss,  the  people  all  over  the  state  conceived  a  most  profound  distrust  of 
corporations   and   of  corporate   undertakings. 

Moreover,  in  addition  to  the  power  to  create  corporations  by  special 
act,  the  state  legislature  possessed  the  power  to  construct  works  of  internal 
improvement  through  the  agency  0f  private  corporations.  Counties,  cities  and 
towns  could  also  be  authorized  to  construct  internal  improvements  of  a  local 
character,  by  subscribing  to  the  stock  of  private  corporations,  for  which 
purpose    debts   might    be    contracted    and   taxes   levied    to   pay   them.    The 

17 


legislation  authorizing  local  governmental  agencies  to  subscribe  to  the  stock 
of  private  corporations  was  usually  passed  without  investigation  or  reflec- 
tion, whenever  desired  by  the  representatives  of  the  localities  affected.  As  a 
result,  private  property  was  in  effect  placed  at  the  mercy  of  irresponsible 
local  majorities,  and  the  municipal  divisions  of  the  state  became  involved  in 
all  the  frauds  and  disasters  of  the  private  companies  to  whose  stock  they  had 
subscribed.  Wasteful  expenditure,  impaired  public  credit,  a  large  debt, 
and  a  heavy  burden  of  taxation  were  the  results  of  this  unrestricted  legis- 
lative power.  A  strong  sentiment  was  created  in  all  parts  of  the  state  in 
favor  of  summoning  a  constitutional  convention  which  should  check  these 
growing  evils  by  an  effectual  reduction  of  the  powers  of  government  and 
unequivocal  limitations  upon  its  future  capacity  for  action. 

The  second  Ohio  Constitutional  Convention  assembled  at  Columbus,  May 
6,  1850.  The  first  session  lasted  from  May  6  to  July  9,  1850,  when  the 
convention  adjourned  to  reassemble  at  Cincinnati,  where  the  final  session 
lasted  from  December  2,  1850,  to  March  10,  1851. 

Of  the  108  members  composing  the  convention,  30  were  born  in  Ohio, 
25  in  Pennsylvania,  20  in  New  England,  9  in  New  York,  8  in  Virginia,  while 
4  were  of  foreign  birth.  Forty-two  of  the  members  gave  their  occupation 
as  that  of  lawyer,  34  that  of  farmer.  In  their  political  affiliations  a  majority 
of  the  members  were  Democrats,  the  vote  for  President  of  the  Convention 
standing:  William  Medill,  Democrat,  60;  Joseph  Vance,  Whig,  38;  other 
candidates,  5. 

Standing  committees  were  appointed  May  14,  1850,  the  subject  of  cor- 
porations being  assigned  to  two  committees,  one  on  banking  corporations, 
the  other  "on  Corporations  other  than  Corporations  for  Banking."  The  lat- 
ter committee  presented  its  first  report  June  1,  1850,  two  important  sections 
of  which  were  as  follows : 

"Section  i.  The  legislature  shall  pass  no  special  act  conferring  cor- 
porate powers. 

"Section  6.  It  shall  be  the  duty  of  the  legislature  to  provide  for  the 
organization  of  cities  and  incorporated  villages  by  general  laws,"  etc. 

This  report  was  read,  ordered  printed,  and  on  June  8,  was  taken  up  for 
discussion.  In  explaining  the  reason  for  adopting  section  1,  Mr.  Norris, 
chairman  of  the  committee,  said:  "Some  of  the  state  constitutions  con- 
tained an  exception,  so  far  as  municipal  corporations  were  concerned. 
There  was  no  very  definite  conclusion  come  to  on  the  part  of  the  committee, 
whether  this  exception  should  be  named  or  not;  but  they  concluded,  however, 
unanimously  to  make  this  report,  without  a  section  of  that  nature.  They 
believed  that  all  the  corporations  of  the  state  could  be  as  well  regulated  by 
general  as  by  special  acts  of  incorporation— by  some  classification  in  cities 
—by  the  number  of  inhabitants,  or  by  some  other  means  which  might  be 
thought  prudent  by  the  legislature."1 

Mr.  Stanton,  another  member  of  the  committee,  said  in  support  of 
the  report:  "The  consideration  of  a  general  law  always  induced  caution 
and  care  with  respect  to  every  provision,  because  it  was  to  operate  all 
over  the  state.     But  now,  when  an  application  is  made  to  the  legislature  for 

1.     Debates   Ohio   Convention,   1850-51,   Vol.    I,   304. 

18 


an  act  of  incorporation  for  a  town  or  city,  it  was  a  purely  local  matter — 
interesting,  perhaps,  to  none  but  the  corporators  themselves,  and  the  mem- 
ber for  a  single  county,  and  nobody  else  caring  anything  about  it — it 
passes  without  examination,  because  it  does  not  operate  over  the  whole 
state."1 

Another  member  of  the  convention,  Mr.  Taylor,  dwelt  upon  the  im- 
portance of  judicial  construction  in  the  case  of  every  law.  The  value  of 
judicial  construction  was  impaired  when  the  laws  lacked  uniformity,  since 
the  decision  in  the  case  of  an  act  affecting  one  city  could  afford  no  safe 
precedent  in  the  case  of  a  different  act  affecting  another  city.  On  the  other 
hand,  "if  corporations,  municipal  and  private,  were  framed  and  regulated 
by  general  laws,  then  a  mooted  point  in  any  locality,  instead  of  being  a 
special  and  temporary  case,  would  immediately  become  practical  and  useful 
matter  of  reference  in  all  quarters  of  the  state."2 

Opposing  the  report,  Mr.  Hitchcock  argued  that  special  legislation 
could  not  be  dispensed  with.  "He  doubted  very  much  whether  there  could 
be  a  general  law  devised  which  would  apply  to  all  the  diversified  require- 
ments of  our  municipal  corporations.  It  seemed  to  his  mind  that  the  same 
charter  which  would  apply  to  the  city  of  Cincinnati  would  not  be  a  suitable 
measure  for  a  village  that  did  not  contain  more  than  500,  or  perhaps  not 
more  than  half  that  number  of  inhabitants."3 

Mr.  Hawkins  and  Mr.  Reemelin  both  replied  to  this  argument,  declar- 
ing that  there  was  no  necessary  difficulty  about  legislating  by  general  law 
upon  the  subject  of  municipal  corporations. 

Mr.  Stanbery  then  proposed  to  amend  Section  1  to  read:  "Provided 
that  the  legislature  shall  pass  no  special  act  conferring  corporate  privileges 
except  for  municipal  purposes,  and  where,  in  their  judgment,  the  objects 
can  be  better  attained  than  under  a  general  law."  This  amendment  was 
rejected  by  a  vote  of  50  to  30. 

No  other  amendments  were  offered,  and  the  report,  practically  in  the 
form  first  presented  by  the  committee,  was  adopted  by  the  convention.  Thus 
the  three  sections  of  the  constitution  of  1851  (which  is  still  the  fundamental 
law  of  the  state)    referring  to  municipal  corporations  read  as  follows: 

(1)  "All  laws  of  a  general  nature  shall  have  a  uniform  operation 
throughout  the  state."4 

(2)  "The  General  Assembly  shall  pass  no  special  act  conferring  cor- 
porate powers."5 

(3)  "The  General  Assembly  shall  provide  for  the  organization  of 
cities  and  incorporated  villages  by  general  laws;  and  restrict  their  power 
of  taxation,  assessment,  borrowing  money,  contracting  debts  and  loaning 
their  credit,  so  as  to  prevent  the  abuse  of  such  power."6 

The  convention  having  completed  its  labors,  adjourned  March  10, 
185 1.  The  new  constitution  was  adopted  by  a  majority  of  16,288,  and  Wil- 
liam Medill,  president  of  the  convention,  was  chosen  governor. 

1.  Debates  Ohio  Convention,  1850-51,  Vol.  I,  306. 

2.  Debates  Ohio  Convention,  1850-51,  Vol.    I,  309. 

3.  Debates    Ohio  Convention,    1850-51,    Vol.    I,    310. 

4.  Constitution,    Art.    II,    Sec.    26. 

5.  Ibid,   Art.    XIII,   Sec.    1. 

6.  Ibid,  Art.  XIII,  Sec.  6. 

19 


II.— CONSTITUTIONAL  CONVENTION 
OF  1873-4. 

The  constitutional  convention  of  1873-4  assembled  at  Columbus,  May 
13,  1873,  and  after  an  adjournment  completed  its  labors  at  Cincinnati  in 
1874.  The  105  members  included  62  lawyers,  16  farmers,  7  merchants, 
6  physicians,  and  14  others  of  miscellaneous  occupations.  The  conven- 
tion chose  for  its  President  a  Republican,  Morrison  R.  Waite,  subsequently 
Chief  Justice  of  the  United  States.  Although  the  constitution  then  drawn 
up  was  rejected  by  the  people,  the  study  of  the  convention  debates  throws 
much  light  upon  the  history  of  special  legislation  in  Ohio. 

On  June  25,  1873,  the  committee  on  municipal  corporations  submitted 
a  report  in  five  sections  which  it  recommended  for  insertion  in  the  new 
constitution.    'Section  one  of  this  report  reads  as  follows: 

"The  General  Assembly  shall,  by  general  laws,  provide  for  the  organi- 
zation and  classification  of  municipal  corporations;  the  number  of  such 
classes  shall  not  exceed  six,  and  the  powers  of  each  class  shall  be  defined 
by  general  laws,  so  that  no  such  corporation  shall  have  any  other  powers,  or 
be  subject  to  any  other  restrictions,  than  other  corporations  of  the  same  class. 
The  General  Assembly  shall  restrict  the  power  of  such  corporations  to  levy 
taxes  and  assessments,  borrow  money  and  contract  debts,  so  as  to  prevent 
the  abuse  of  such  power."1 

Mr.  Hoadly  of  Cincinnati,  as  chairman  of  the  committee,  opened  the 
debate,  and  in  a  speech  of  marked  ability  explained  the  motives  which  had 
governed  the  committee's  action.  The  object  of  this  section,  Mr.  Hoadly 
declared,  was  to  fortify  and  throw  additional  bulwarks  around  the  present 
constitution,  so  that  its  provisions  denying  the  power  of  special  legislation 
with  regard  to  municipal  corporations  could  not  thereafter  be  evaded. 
After  giving  an  interesting  account  of  special  legislation  in  Ohio  up  to 
date,  Mr.  Hoadly  said:  "That  nearly  all  of  these  statutes  are  unconstitu- 
tional and  void,  as  being  special  legislation,  I  imagine  all  lawyers  would 
admit.  It  is  not  classification  to  single  out  a  city  having  a  particular  popula- 
tion, or  a  village  of  5,641,  and  say  that  any  village  having  that  population,  as 
published  in  that  book,  and  no  more,  shall  have  authority  to  build  head  of 
division  and  car  shops."2 

The  chief  objections  to  such  special  legislation,  according  to  Mr.  Hoadly, 
were  two:  First,  that  a  law  for  the  benefit  of  a  particular  city  has  the  at- 
tention only  of  the  representatives  from  that  city,  receiving  no  adequate 
consideration  from  the  legislature  as  a  whole;  and  second,  that  special 
legislation   is  peculiarly    productive   of   omnibus   and  log-rolling  legislation.8 

Mr.  Hoadly  next  pointed  out  that  in  the  committee's  opinion,  it  was  im- 
possible to  govern  all  cities  and  villages  on  the  same  stereotyped  system,  on 
account  of  differences  in  population  ranging  from  200  to  200,000.  In  sug- 
gesting six  classes  he  was  aware  that  they  were  trespassing  upon  the  province 
of  legislation,  but  they  must  either  do  this  or  give  up  the  matter  altogether. 

1.  Debates  Ohio   Convention,  1873-74,  Vol.  I,   578. 

2.  Debates  Ohio  Convention,   1873-74,  Vol.   I,  581. 

3.  Ibid,  Vol.  I,  581. 

20 


"Six  classes  would  be  sufficient  to  allow  the  real  divisions  of  corporations 
to  be  recognized  by  law,  and  yet  the  number  would  be  so  small  that  ficti- 
tious and  unnecessary  provisions  would  not  prevail."1 

The  first  important  speech  against  the  committee's  report  was  made  by 
Mr.  John  W.  Herron,  of  Cincinnati,  on  July  9,  1873.  The  chief  points  made 
by  Mr.  Herron  were  as  follows: 

(1)  The  cities  of  Ohio  were  as  carefully  and  as  prudently  managed 
prior  to  1851  under  special  laws  as  they  have  been  since  that  date. 

(2)  If  cities  are  to  borrow  money,  they  should  be  compelled  to  apply 
to  the  legislature  for  that  power.  It  is  unsafe  to  entrust  the  power  to  bor- 
row money  under  general  laws  io  the  city  councils,  where  the  rings  have 
most  power. 

(3)  Special  legislation  is  often  necessary  to  protect  the  people  of 
cities  from  rings  which  have  gained  control  of  the  city's  government. 
"Look  at  the  acts  which  have  been  passed  since  1851  and  you  will  find  that 
a  large  number  of  them  have  been  for  the  special  purpose  of  protecting 
the  people  from  the  persons  in  whose  power  they  had  placed  the  control  of 
the  municipal  corporation;  and  if  you  take  from  the  legislature  this  power, 
then  you  leave  the  people  completely  helpless.  There  will  arise  under  gen- 
eral laws,  circumstances  which  will  require  the  legislature  to  step  in  and 
protect  the  people  by  some  kind  of  special  legislation,  from  the  corporate 
authorities  that  have  obtained  control  of  the  cities."2 

(4)  With  a  single  exception,3  the  many  instances  of  special  legisla- 
tion since  185 1  have  never  been  questioned  in  a  judicial  proceeding.  This 
shows  that  the  people  have  been  thoroughly  satisfied  with  special  legisla- 
tion and  that  they  acquiesce  in  its  necessity. 

(5)  This  necessity  is  so  real  that  whatever  prohibitions  or  restrictions 
are  adopted  will  be  evaded. 

(6)  The  growth  and  prosperity  of  cities  will  be  checked  by  the  rigid 
features  of  the  proposed  classification.* 

In  his  speech  against  the  report,  Mr.  Alexander  of  Van  Wert  made  the 
following  objections  to  the  adoption  of  the  proposed  plan:  (1)  Contin- 
gencies now  unforeseen  may  arise  which  will  make  special  legislation  an 
absolute  necessity.  (2)  A  comparison  of  the  laws  of  1850  and  1870  shows 
that  the  operation  of  the  present  constitution  has  been  valuable,  and  that 
special  legislation,  so  far  as  it  is  an  evil,  has  been  remedied.  (3)  The 
division  of  cities  into  six  classes  would  increase  the  evil  of  negligence  on 
the  part  of  the  legislators  as  to  all  matters  which  do  not  pertain  to  the 
class  to  which  their  constituency  belongs.  (4)  The  proposed  plan  usurps 
legislative  functions,  and  is  based  upon  an  unwarrantable  distrust  of  the 
legislature.8 

Supporting  the  committee's  report,  Mr.  Scribner  of  Toledo  pointed  out 
that  from  185 1  to  1868,  over  200  statutes  had  been  passed,  special  in  their 
nature  but  general  in  form,  and  as  a  result  the  laws  concerning  municipal 

1.  Debates   Ohio   Convention,    1873-74,   Vol.    I,   582. 

2.  Debates  Ohio  Convention,   1873-74,   Vol.    I,  590. 

3.  State  v.   Cincinnati,   20  Ohio   St.,    18. 

4.  Speech   of  Mr   Herron,  Debates   Ohio  Convention,    1873-74,   Vol.    I,   590-92. 

5.  Debates    Ohio   Convention,    1873-74,    Vol.    I,    593-94. 

21 


corporations  were  in  almost  inextricable  confusion.1 

The  most  effective  speech  against  the  committee's  report  was  pro- 
bably that  of  Mr.  Rufus  King,  a  delegate  from  Cincinnati,  and  president  of 
the  convention  after  the  resignation  of  Mr.  Morrison  Waite.  Mr.  King 
said:  "The  convention  of  1851  attempted  an  impossibility.  It  sought  to 
force  uniformity  upon  the  cities  and  villages  of  Ohio,  by  the  passage  of 
this  Thirteenth  Article  on  corporations.  *  *  *  What  I  object  to  in  the 
existing  constitution  and  in  the  proposition  now  before  us,  is  this  idea  of 
governing  cities  and  villages  upon  the  same  principle  that  you  regulate  banks, 
railroads,  cotton  factories  and  private  corporations  of  every  sort;  thus  as- 
suming to  place  the  people  of  our  cities  or  towns  upon  the  same  footing  in 
respect  to  the  great  functions  of  municipal  government  upon  which  you  ad- 
minister the  dollar  and  cent  operations  of  private  corporations,  created  for 
mere  trade  and  commerce.    ****** 

"The  Convention  of  1851  found  the  state  enjoying,  in  a  high  degree,  the 
privileges  and  benefits  of  municipal  independence.  *  *  *  I  mean,  inde- 
pendence of  the  various  cities  from  any  control  or  interference  of  each 
other.  *  *  *  Of  all  this  independence,  which  the  people  of  Ohio  were 
thus  enjoying,  the  Constitution  of  1851  deprived  us.  It  repealed  at  one 
stroke,  and  so  far  as  I  can  discover,  without  debate  or  murmur,  the  inde- 
pendent charters  under  which  all  our  cities  and  towns  were  enjoying,  each 
their  own  little  system  of  organization  and  management.  *  *  *  *  It 
undertook  to  amend  every  charter  of  every  city  and  town  in  Ohio  and  to 
compel  the  legislature  to  put  them  all  under  general  and  uniform  laws. 

"But,  sir,  it  has  proved  a  total  failure.  The  Chairman  of  the  Committee 
admits  that  it  is  a  failure.  The  people  of  the  State,  the  Legislature  and  the 
courts,  have  virtually  repealed  it,  long  since,  by  evasions  directly  in  viola- 
tion of  its  letter  and  spirit.  It  could  not  be  kept.  It  was  an  impracticability 
— a  mere  abstraction.  The  only  object  which  it  was  to  subserve  was  to  get 
rid  of  special  legislation;  but  it  has  rather  served  to  multiply  such  legisla- 
tion, and  has  introduced  confusion  far  worse  than  any  that  can  be  found 
under  the  legislation  prior  to  1851.  Legislation  has  become  so  special  and 
intricate,  under  these  'general  laws,'  that  it  is  now  almost  impossible  for  any 
man,  except  he  be  a  lawyer,  and  it  is  difficult,  even,  for  many  of  them,  to 

tell  what  the  law  is  with  regard  to  many  points  in  municipal  government. 

*    *     *    * 

"It  is  said  there  was  once  a  monarch  named  Procrustes,  who  by  a  general 
law  decreed  every  man  in  his  kingdom  to  be  of  the  same  size,  and  he  put 
them  in  a  uniform  machine  which  cut  off  their  heads  or  their  feet,  just  as 
the  circumstances  required.  It  seems  very  much  like  the  same  thing  when 
we  require  municipal  governments  in  Ohio  to  be  all  of  one  and  the  same 
organization.  It  has  proved  a  failure.  The  Legislature  and  the  Supreme 
Court  have  disregarded  it,  and  the  people  of  Ohio  are  living  in  plain  violation 
of  their  Constitution.  They  cannot  live  under  it;  and  the  proposition  now 
brought  forward  by  the  Committee  as  a  substitute  is,  in  my  judgment,  cal- 
culated to  make  the  evil  worse  than  it  already  is.  For,  sir,  while  the  Legis- 
lature and  the  courts  have  driven  a  coach  and  four  through  this  uniformity 

1.     Debates   Ohio  Convention,   1873-74,   Vol.    I,   594. 

22 


clause  in  the  present  constitution,  by  a  system  of  classification  and  circum- 
locution which  has  become  the  laughing  stock  of  the  people  of  the  state,  it 
is  now  proposed  to  amend  by  dividing  all  the  cities,  towns  and  villages  in 
Ohio  into  six  classes,  and  to  hedge  in  each  of  these  classes  by  a  cast-iron 
provision  of  the  Procrustean  sort,  so  terrible  as  to  defy  opposition."1 

In  the  latter  part  of  his  speech  Mr.  King  laid  much  emphasis  upon  the 
strife  between  various  cities  which,  he  declared,  would  result  from  the  pro- 
posed plan.  "The  objection  to  the  whole  system  is  this,  that  it  compels  the 
different  cities  which  must  thus  be  grouped  together  into  one  class,  to  be 
perpetually  interfering  with  each  other,  engaging  in  a  constant  internecine  war 
with  each  other,  with  regard  to  all  of  the  small  details  of  their  home  gov- 
ernment. It  necessarily  puts  them  at  war  with  each  other  upon  every  di- 
versity which  either  or  any  of  the  class  may  seek  from  the  Legislature  in 
organization,  power  or  liabilities."2 

The  argument  that  the  proposed  plan  would  destroy  local  autonomy  was 
answered  by  several  delegates,  who  pointed  out  that  general  laws  could  be 
passed  establishing  the  outlines  of  municipal  organization,  leaving  details  to 
be  regulated  by  each  city  in  accordance  with  its  own  needs.  "We  should 
give  them,"  declared  Mr.  Powell,  "the  utmost  liberties  to  have  their  own 
institutions  managed  in  their  own  way,  as  they  deem  right  and  proper;  and 
yet  have  general  laws,  applicable  to  the  several  cities  of  the  same  class,  that 
would  be  all  alike,  giving  sufficient  liberty  within  that  for  any  special  by-laws 
to  regulate  their  own  municipal   corporations."8 

iMr.  Griswold  and  Mr.  Townsend  likewise  argued  that  the  Legislature, 
after  classifying  cities,  might  grant  large  powers  by  general  laws,  leaving 
the  cities  to  avail  themselves  of  these  powers  or  not  as  they  saw  fit*  To 
this  Mr.  Neal  replied  that  in  many  cases  it  would  not  foe  prudent  to  leave 
such  a  decision  to  the  voters  of  a  city.  "A  law  is  passed,"  said  he,  "author- 
izing cities  of  a  certain  class  to  borrow  money  to  the  amount  of  fifty  thous- 
and dollars  for  the  purpose  of  improving  the  streets.  Very  well;  take  the 
town  of  Ironton  still  as  an  illustration.  A  large  number  of  men  there  sup- 
port their  families  by  laboring  on  the  streets  at  this  present  time;  and 
though  the  town  may  be  badly  in  debt,  they  can  go  to  the  polls  and  compel 
the  taxpayers  to  borrow  the  money."5 

In  his  remarks  closing  the  debate,  Mr.  Hoadly  clearly  re-stated  the 
object  of  the  new  plan  as  follows:  "If  we  can  only  reduce  the  classes  to  a 
number  so  small  as  to  require,  substantially,  a  rule  of  classification  for  the 
state,  you  break  up  the  mischief  practised  under  special  legislation  of  govern- 
ing cities  from  without;  and  by  requiring  that  all  cities,  towns  and  villages 
of  the  same  class  shall  have  the  same  powers,  you  compel  the  Legislature  to 
establish  a  general  system,  under  the  organic  law,  for  all  corporations  of  the 
same  class ;  and  then  the  people  under  that  'Constitution,  within  that  organic 
law,  may  govern  themselves,  and  there  will  be  no  possibility  of  the  Legisla- 
ture taking  away  those  powers  which  those  people  ought  to  exercise,  unless 

1.  Debates  Ohio   Convention,  1873-74,  Vol.   II,  part  II,  1300-01. 

2.  (Debates    Ohio    Convention,    1873-74,   Vol.    II,   part   II,    1301. 

3.  Debates   Ohio    Convention,    1873-74,    Vol.    II,    part    II,    1303. 

4.  Ibid,    pp.   1306-7;   1309. 

5.  Debates  Ohio  Convention,  1873-74,  Vol.  II,  part  II,  1309. 

23 


they  take  them  also  from  the  other  cities  of  the  same  class  at  the  same 
time."1 

To  Mr.  Herron's  argument  that  it  was  frequently  necessary  for  the  state 
legislature  to  intervene  in  the  affairs  of  a  particular  city  to  remedy  its  bad 
government,  Mr.  Hoadly  replied:  "I  do  not  believe  you  can  cure  intestine 
disorder  by  outside  application.  You  must  begin  where  the  disease  is.  If 
the  (people  are  able  to  govern  themselves,  they  ought  to  be  allowed — through 
their  own  agencies — to  correct  their  follies  and  mistakes,  and  return  to  the 
better  way.    You  cannot  cure  them  by  external  application."1 

The  contest  in  the  convention  resulted  in  a  victory  for  the  opponents  of 
special  legislation,  a  test  vote  showing  52  delegates  in  favor  of  the  commit- 
tee's report,  and  27  opposed  to  it.  Accordingly,  the  committee's  report,*  sub- 
stantially as  made,  was  incorporated  in  the  proposed  constitution.  While  this 
constitution  failed  of  ratification  at  the  polls  (leaving  that  of  1851  still  in 
force),  the  convention's  discussions  constitute  an  important  contribution  to 
the  study  of  special  legislation,  as  well  as  to  the  general  subject  of  munic- 
ipal government.* 

Ill —LEGISLATION  IN  OHIO  UNDER   CONSTITU- 
TIONAL LIMITATIONS. 

By  the  constitution  adopted  in  1851,  special  acts  conferring  corporate 
power  were  forbidden,  and  it  was  made  the  duty  of  the  legislature  to  pro- 
vide for  the  organization  of  cities  and  incorporated  villages  by  general  laws. 
Accordingly,  on  May  3rd,  1852,  the  Ohio  legislature  passed  a  general  munic- 
ipal corporations  act,5  one  of  the  first  of  its  kind  passed  in  the  United 
States.6 

The  first  section  of  this  measure  repealed  all  special  acts  for  the  govern- 
ment of  municipal  corporations,  and  extended  its  provisions  to  existing  cor- 
porations as  well  as  to  those  which  should  thereafter  be  created.  The  powers 
and  privileges  of  municipal  corporations  were  then  specified  with  great 
minuteness,  twenty  sections  of  the  act  being  devoted  to  this  purpose  (Sec 
18-39). 

The  next  division  of  the  act  (Sec.  40-43),  established  the  classes  into 
which  municipal  corporations  were  divided.  Cities  with  more  than  20,000 
inhabitants  were  to  constitute  the  first  class,  and  cities  with  from  5,000  to 
20,000  inhabitants  the  second  class.  Municipal  corporations  with  less  than 
5,000  inhabitants  were  divided  into  incorporated  villages,  and  incorporated 
villages  for  special  purposes  (i.  e.,  special  road  districts). 

In  the  year  following  each  federal  census,  it  was  to  be  the  duty  of  the 
Governor,  Auditor  and  Secretary  of  State  to  ascertain  what  cities  and  vil- 

1.  Debates    Ohio    Convention,    1873-74,    Vol.    II,    part    11,    1318. 

2.  Debates    Ohio    Convention,    1873-74,    Vol.    II,    part    II,    1319. 

3.  For  section  I  of  this   report,  see   supra,   p.   20. 

4.  See  Debates  Ohio  Convention,  1873-74,  Vol.  I,  578-95:  Vol.  II.  oart  II  1288- 
1441;   Vol.    II,   part  III,   2861-67;   3433-34. 

5.  50    Ohio_  Laws,   223-259. 

6.  Missouri  passed  a  general  act  for  the  incorporation  of  towns  in  1845;  Penn- 
sylvania in  1851,  for  the  regulation  of  boroughs  thereafter  incorporated;  Indiana  on 
June  18,  1852,  a  general  municipal  corporation  act,  which  did  not  apply  to  existing 
corporations  unless  they  chose  to  come  under  its  provisions;  Iowa  adopted  the  Ohio 
act,  with  modifications,  in  1860;  North  Carolina  in  1854,  a  general  act  applying  to  all 
incorporated  towns  when  not  inconsistent  with  special  charters  or  acts  referring  thereto 

24 


lages  were  entitled  to  be  advanced  to  a  higher  class.  A  statement  to  that 
effect  was  then  to  be  published  at  Columbus  and  also  in  the  municipality  af- 
fected, and  at  its  next  annual  election  such  municipality  was  to  organize  ac- 
cording to  its  new  grade. 

Incorporated  villages  were  to  be  governed  by  one  mayor,  one  recorder, 
and  five  trustees,  elected  annually;  the  mayor,  recorder  and  trustees  consti- 
tuting the  village  council,  any  five  of  -whom  formed  a  quorum.  The  corporate 
authority  of  cities  was  vested  in  the  mayor,  the  board  of  trustees  (two  from 
each  ward,  who,  with  the  mayor,  composed  the  city  council)  ;  and  also  in 
such  other  officers  as  were  mentioned  in  the  act  or  created  by  its  authority. 

Sections  89  to  98  of  this  act  relate  to  the  revenues  and  debts  of  municipal 
corporations.  Narrow  limitations  were  placed  on  the  taxing  and  borrowing 
powers.  Loans  could  only  be  made  in  anticipation  of  the  revenues  of  the 
current  fiscal  year,  and  then  only  in  the  following  amounts :  for  cities  of  the 
first  class,  $100,000;  second  class,  $50,000;  villages,  $5,000;  special  road  dis- 
tricts, $1,000.  The  tax  limits  for  general  and  incidental  expenses  were  fixed 
for  the  four  classes  of  municipalities  at  five,  three,  three,  and  two  and  a  half 
mills  on  the  dollar,  respectively.  In  addition  to  the  amount  thus  authorized 
for  general  purposes,  there  could  be  levied  to  create  a  special  fund  for  the 
purpose  designated,  and  to  be  applied  to  no  other:  for  police  department, 
first  class  cities,  two  mills ;  second  class,  one  mill ;  fire  department,  both 
classes,  one  mill;  for  creation  of  sinking  fund,  both  classes,  one-half  mill; 
payment  of  interest  on  debt,  both  classes,  not  over  two  mills ;  and  in  first 
class  cities  only,  for  workhouse,  one  and  one-half  mills;  for  water-works, 
one-half  mill ;  for  school  purposes,  two  mills,  and  for  city  infirmary,  two 
mills. 

Such,  in  outline,  was  Ohio's  first  general  law  for  municipalities.  In  the 
following  year,  1853,  a  supplementary  and  amendatory  act1  was  passed,  con- 
sisting of  thirty-four  sections.  The  most  important  of  these  related  to  the 
advancement  of  municipalities,  delimited  their  financial  powers,  and  gave 
city  councils  full  power  to  fix  or  alter  ward  boundaries.  It  was  now  pro- 
vided that  no  city  or  incorporated  village  should  'be  advanced  to  a  higher 
grade,  until  its  trustees,  by  resolution  addressed  to  the  secretary  of  state, 
should  signify  the  municipality's  acceptance  of  such  advanced  grade.  Addi- 
tional financial  powers  were  granted  by  the  act,  but  these  were  as  strictly 
limited  as  in  the  act  of  1852. 

These  acts  of  1852  and  1853  form  the  framework  for  the  municipal  leg- 
islation passed  in  subsequent  years.  It  is  noteworthy  that  the  plan  of  class- 
ification was  introduced  by  the  first  law  passed,  and  that  the  second  made 
advancement  optional  with  each  city — thereby  making  it  possible  for  the 
legislature,  by  creating  additional  classes  for  new  corporations,  to  allow 
each  important  municipality  to  remain  a  class  by  itself.*  Thus  classification 
became  isolation;  and  the  Supreme  Court  of  Ohio  sanctioned  the  plan  by 
declaring  constitutional  a  law  which  applied  to  all  members  of  a  class,  even 
though  but  one  city  was  included  in  the  class  at  the  time  of  its  enactment, 
providing  other  cities  might  eventually,  by  increase  in  population  and  ad- 
vancement in  grade,  come  within  its  terms.3 

1.  51    Ohio   Laws,   360-374    (March   11,   1853). 

2.  For  illustration  of  the  working  of  this   policy,   see  infra,   p.   29. 

3.  Infra,  p.    39. 

25 


Moreover,  unlike  the  Pennsylvania  court,  the  Ohio  court  left  the  creation 
of  additional  classes  wholly  to  legislative  discretion — and  the  result  was  a 
confusing  mass  of  special  legislation,  made  general  in  form  by  means  of  the 
most  elaborate  plan  of  municipal  classification — more  properly,  municipal 
isolation — ever  devised. 

One  of  the  earliest  examples  of  special  acts  put  in  the  form  of  a  general 
law  was  the  law  of  April  5,  1856,1  which  applied  to  cities  of  the  first  class  with 
a  population  of  less  than  80,000  at  the  last,  or  any  succeeding,  census.  This 
measure,  which  effected  radical  changes  in  the  municipal  machinery  of  Cleve- 
land, was  put  in  this  form  so  that  it  would  not  apply  to  Cincinnati,  also  a 
city  of  the  first  class.  Another  special  act8  of  the  same  year  authorized  a 
higher  limit  of  taxation  in  cities  of  the  first  class  which  at  the  last  federal 
census  had  a  population  exceeding  100,000.  In  the  following  year,  1857,  the 
act  establishing  the  rate  of  taxation  for  city  and  village  purposes  excepts 
Cincinnati  by  name  from  its  operation8.  A  law  of  18594  conferred  certain 
powers  upon  city  councils  in  cities  of  the  first  class  then  having  a  population 
of  less  than  80,000  and  more  than  35,000,  Cleveland  being  the  city  affected. 
In  1861  several  important  changes  in  the  city  government  of  Cleveland  were 
made  by  two  acts,5  each  of  which  applied  "only  to  such  cities  of  the  first  class 
having  a  population  less  than  80,000  inhabitants  as  are  of  that  class  at  the 
time  it  takes  effect."  By  another  law*  of  the  same  year,  cities  of  the  second 
class  with  a  population  of  not  less  than  12,000  were  authorized  to  fund  their 
debts  and  issue  bonds  to  the  amount  of  $25,000. 

By  the  year  1863  the  full  tide  of  special  legislation  had  set  in.  During 
the  nine  years  from  1853-1862,  a  total  of  29  special  acts  affecting  municipal- 
ities had  been  passed;  in  the  seven  years  following,  or  from  1863  to  1869, 
99  such  acts  were  passed.  Many  special  and  temporary  classifications  were 
now  used.  Thus  the  act  of  March  25,  1863,7  authorized  the  erection  of  a 
work-house  in  second  class  cities  whose  population  exceeded  13,000.  Three 
cities,  Columbus,  Dayton  and  Toledo,  came  within  this  category.  By  an  act 
passed  in  1864,8  any  second  class  city  having  over  13,000  and  less  than 
20,000  inhabitants  at  the  last  federal  census  (Columbus  and  Toledo),  was 
authorized  to  borrow  not  over  $30,000  for  cemetery  purposes.  From  time  to 
time  the  population  limit  in  laws  intended  for  Cincinnati  was  increased  so  as 
to  shut  out  Cleveland;  thus  in  1864  and  following  years  Cincinnati  was  re- 
ferred to  as  "any  city  of  the  first  class  whose  population  exceeded  100,000 
at  the  last  federal  census."  Toledo  was  singled  out  in  several  palpably  special 
acts — one  of  which  was  the  act  of  April  5,  1866,9  which  applied  to  "any  sec- 
ond class  city  having  a  population  under  14,000  at  the  last  federal  census 
and  having  within  its  limits  a  canal,"  etc.  Dayton  was  carefully  identified 
by  the  law  of  February  27,  1867,10  as  "any  city  with  a  population  of  20,081  at 
the  last  federal  census;"  again  as  "all  cities  of  the  second  class  having  over 

1.  53  Ohio   Laws,  57. 

2.  53  Ohio  Laws  214   (April  11,  1856). 

3.  54  Ohio  Laws  234    (April  17,  1857). 

4.  56  Ohio  Laws  127   (April  4.  1859). 

5.  58  Ohio  Laws  25   (March  1,  1861) ;  and  58  Ohio  Laws  39   (March  21,  1861). 

6.  58  Ohio  Laws  103    (April  23,  1861). 

7.  60  Ohio  Laws   45. 

8.  61  Ohio  Laws  72  (March  28,  1864). 

9.  63  Ohio  Laws  120. 

10.     64  Ohio  Laws  26   (Feb.  27,  1867). 

26 


20,000  population;"1  and  still  again  as  "any  city  having  a  population  of  less 
than  25,000  and  more  than  20,000  at  the  last  federal  census."2  Equally  special 
were  many  of  the  laws  affecting  Cincinnati.  Thus  the  first  section  of  the  act 
of  April  13,  1868,*  declared:  'The  city  council  of  any  city  of  the  first  class 
having  a  population  exceeding  150,000,  shall  have  the  power  to  issue  the 
bonds  of  such  city,  in  any  sum  not  exceeding  $150,000  to  be  used  for  the 
purpose  of  completing  the  Eggleston  avenue  sewer."  Section  3  continued: 
"Whenever  any  of  the  bonds  herein  provided  for  shall  be  for  sale,  not  less 
than  ten  days'  previous  notice  Of  said  sale  shall  be  advertised  in  Cincinnati." 
In  the  following  year,  1869,  another  act*  was  passed  referring  to  Cincinnati, 
likewise  palpably  special:  "The  city  council  of  any  city  of  the  first  class 
having  a  population  of  150,000  inhabitants,  wherein  a  public  avenue  of  not 
less  than  one  hundred  feet  in  width  is  now  projected,  to  be  known  as  'Gil- 
bert Avenue',  is  hereby  authorized  to  issue  the  bonds  of  said  city  in  any 
sums  not  exceeding  $150,000.  for  improving  such  avenue,"  etc. 

A  general  view  of  the  special  municipal  legislation  passed  by  the  legis- 
lature during  the  seventeen  years  from  1853-1869,  both  inclusive,  may  be 
obtained  from  the  accompanying  table.  Of  the  128  special  acts  passed  dur- 
ing this  period,  71,  or  55.47  per  cent,  gave  to  the  municipalities  special  finan- 
cial powers,  either  to  borrow  money  or  levy  taxes.  The  history  of  this 
legislation  would  seem  to  warrant  the  conclusion  that  special  legislation  is 
inevitable  so  long  as  the  state  insists  upon  a  strict  control  of  the  financial 
powers  of  the  municipalities.6 


Local  and  Special  Acts  of  the  Ohio  Legislature  Concerning  Municipali- 
ties 1853-1869. 


Year 

Total 

Number 

Acts 

Conferring 

Financial 

Power 

To  Borrow 
Money 

To  Levy 
Tax 

Conferring 

Power 
(other  than 
Financial) 

Defining 
Duties  of 
Officers 

Changing 
Framework 
of  Govern- 
ment 

1853 

1 

1 

1854 

1 

1 

1855 

1856 

4 

"i 

"2 

3 

1857 

2 

2 

i 

1 

"i 

..„ 

1858 

2 

"i 

1859 

5 

"l 

i 

"2 

2 

1860 

3 

2 

i 

1 

1 

i 

1861 

7 

6 

3 

3 

1 

"2 

1862 

4 

2 

2 

2 

1863 

10 

7 

"'4 

3 

"2 

i 

1864 

13 

6 

4 

2 

7 

1865 

7 

4 

2 

2 

1 

"2 

1866 

13 

7 

2 

5 

5 

"i 

1867 

25 

14 

8 

6 

9 

2 

1868 

21 

9 

8 

1 

8 

"4 

1869 

10 

9 

9 

1 

1853-69 

128 

71 

42 

29 

36 

13 

14 

64    Ohio  Laws   122    (April   10,    1867). 

64  Ohio  Laws  123    (April  10,   1867.) 

65  Ohio   Laws   86. 

66  Ohio   Laws    130    (May   6,    1869). 
For    a  table    of   special   acts   affecting  cities   passed  by  the   legislature    from   1876 


to  1892,  see  infra,  p. 


27 


On  May  7,  1869,  the  municipal  code  of  1869  was  passed,  consisting  of  61 
chapters  and  732  sections.1  The  object  was  to  codify  the  general  laws,  with 
no  pretense  of  putting  an  end  to  special  legislation — in  fact,  the  code  itself 
excepts  Cleveland  and  Toledo  from  the  operation  of  the  provisions  of  its 
police  act;  and  on  the  very  day  of  its  enactment,  special  acts  were  passed 
referring  to  Cincinnati'  and  Toledo." 

The  legislation  in  the  years  following  1869  shows  a  constant  increase  in 
the  number  of  special  acts.  Notwithstanding  the  decision  in  the  case  of  The 
State  v.  The  City  of  Cincinnati,*  where  a  special  act  enlarging  the  bound- 
aries of  Cincinnati  was  declared  unconstitutional  and  void,  the  legislature 
continued  to  enact  special  laws.  Thus  in  three  acts8  in  the  year  1872,  Cleve- 
land, whose  population  was  92,829,  was  the  only  city  included  within  the  dif- 
ferent limits  50,000  to  100,000,  80,000  to  100,000  and  90,000  to  150,000.  In 
the  same  year,  by  a  law8  which  authorized  the  erection  of  car  shops,  Dela- 
ware was  identified  by  the  circumlocution  "villages  or  cities  contain- 
ing a  population  of  5,641,  and  no  more,  by  the  federal  census  of  1870,  pub- 
lished in  the  last  volume  of  the  Ohio  Statistical  Report."  Xenia  was  de- 
scribed as  "any  city  of  the  second  class  having  a  population  at  the  last  fed- 
eral census  not  exceeding  6,400,  nor  less  than  6,30a7  Another  law  affected 
all  cities  through  which  the  National  Road  passed.8 

In  1876,  Cincinnati  was  given  a  new  police  board  by  an  act9  which  pro- 
vided that  "in  all  cities  of  the  first  class,  having  at  the  last  federal  census 
a  population  of  200,000  and  over,  the  police  powers  and  duties  shall  be  in- 
vested in  and  exercised  by  a  board  of  five  members  to  be  appointed  by  the 
governor."  In  the  case  of  The  State  v.  Covington,10  the  Supreme  Court 
upheld  this  act  on  the  ground  that  the  powers  conferred  by  the  legislature 
upon  the  board  of  police  commissioners  were  not  "corporate"  powers  within 
the  meaning  of  Art.  XIII,  Sec.  1  of  the  constitution.  Local  laws,  the  court 
asserted,  were  not  prohibited  by  the  constitution  unless  they  confer  corporate 
r  powers  or  unless  they  are  of  general  nature. 

On  May  14,  1878,  a  new  municipal  code11  was  enacted,  in  which  new  re- 
finements were  introduced  in  the  classification  of  municipalities.  Cities  were 
divided  into  two  classes,  as  before,  but  each  class  was  subdivided  into  four 
grades  in  accordance  with  the  following  plan: 


138. 


1. 

66  Ohio  Laws  145-286. 

2. 

66  Ohio  Laws  337. 

3. 

66  Ohio  Laws  346. 

4. 

20  Ohio  Laws  18. 

5. 

69   Ohio  Laws  13,  128, 

G. 

69  Ohio   Laws  70. 

7. 

70  Ohio  Laws  116. 

8. 

70  Ohio  Laws  153. 

9. 

73   Ohio  Laws  70. 

10. 

29  Ohio   State  102. 

11. 

75    Ohio  Laws   161-419. 

28 


Classification  of  Ohio  Cities  by  the  Municipal  Code  of  1878. 


Grade 

Population  Basis  of 
Classification 

Name  of  City 

Population  in 
1870 

1st       J  2 
Class     |  3 

u 

200,000+ 

Cincinnati 

216,239 

90,000-200,000 

Cleveland 

92,829 

31,500-90,000 

Toledo 

31,584 

To    be  composed 

of    cities    advanced    from 

second  class 

ri 

30,500-31,500 

Columbus 

31,274 

2 

20,000-30,500 

Dayton 

30,473 

3 

10,000-20,000 

Hamilton 

Springfield 

Zanesville 

Portsmouth 

Akron 

11,081 
12,652 
10,001 
10,592 
10,006 

4 

5,000-10,000 

Delaware 

Xenia 

Steubenville 

5,641 
6,377 
8,107 

2nd 

Ironton 

5,686 

Class 

Newark 

6,698 

Youngstown 

8,075 

Piqua 

5,967 

Mansfield 

8,029 

Chillicothe 

8,920 

Fremont 

5,455 

Tiffin 

5,648 

Canton 

8,660 

Massillon 

5,185 

Marietta 

5,218 

Wooster 

5,419 

• 

Springfield  (HamiltonCo.) 

6,548 

This  classification  put  each  of  the  five  chief  cities  of  the  state  in  a  grade 
(practically  a  class)  by  itself,  so  that  any  one  of  them  could  he  easily  identi- 
fied without  being  named.  Thus  Columbus  would  be  described  in  legis- 
lative acts  as  "all  cities  of  the  first  grade  of  the  second  class."  Five  cities 
were  included  in  the  third  grade  of  the  second  class;  hence  special  acts  re- 
ferring to  one  of  these  cities  would  have  to  make  use  of  other  means  of 
identification,  such  as  "cities  of  the  third  grade,  second  class,  with  a  popula- 
tion of  10,592  at  the  last  federal  census."1 

The  following  table  gives  a  general  view  of  the  special  acts  affecting 
municipalities  passed  during  the  seventeen  years  from  1876  to  1892,  both  in- 
clusive. Comparing  this  table  with  the  one  on  page  2y,  also  covering  a 
seventeen  year  period  (1853-1869),  it  will  be  noted  that  the  number  of  special 
laws  during  the  second  period  is  nearly  ten  times  as  great  as  in  the  earlier 
period :  while  the  percentage  of  laws  conferring  financial  powers  has  also  in- 
creased— since  of  the  1202  acts  passed  during  this  second  period,  1124,  or 
93-5  per  cent,  conferred  financial  powers,  as  compared  with  55.47  per  cent 
during  the  earlier  period. 


75  Ohio  Laws  541. 


29 


Xocal  and  Special  Acts  of  the  Ohio  Legislature  Conferring  Powers  Upon 
Municipal   Corporations,   1 876-1 892. * 


Year 

Total  Number 
Acts 

Conferring 

Financial 

Powers 

To  Borrow 
Money 

To  Transfer 
Funds 

To  Levy 
Tax 

1876 

11 

7 

3 

1 

3 

1877 

54 

49 

25 

15 

9 

1878 

41 

35 

22 

9 

4 

1879 

43 

37 

17 

15 

5 

1880 

24 

20 

6 

10 

4 

1881 

31 

24 

15 

8 

1 

1882 

24 

24 

9 

4 

11 

1883 

54 

53 

38 

15 

1884 

56 

52 

26 

24 

2 

1885 

62 

59 

38 

18 

3 

1886 

66 

61 

31 

27 

3 

1887 

80 

75 

46 

26 

3 

1888 

117 

109 

51 

56 

2 

1889 

176 

168 

105 

58 

5 

1890 

126 

121 

56 

62 

3 

1891 

156 

151 

72 

77 

2 

1892 

81 

79 

34 

45 

] 876-92 

1,202 

1,124 

.  594 

470 

60 

The  following  classification2  of  cities  was  in  force  at  the  time  when  the 
system  was  finally  declared  unconstitutional   (June  26,   1902)  : 


Grade 

Population  Basis  of 
Classification 

City 

1st        \\ 
Class     J  « 

200,000+ 
90,000-200,000 
31,500-90,000 

Cincinnati 
Cleveland 
Toledo 

'1 
2 
3 

30,500-31,500 
20,000-30,500 
10,000-20,000 

Columbus 

Dayton 

Sandusky,  Akron,  Ports- 

2nd 

Class    i 

3-a 
3-b 
4 

.4-a 

28,000-33,000 

16,000-18,000 

5,000-10,000  (except 

those  with  from  8,330-9,050) 

8,330-9,050 

mouth,  Zanesville 
Springfield 
Hamilton 

About  thirty  municipal- 
ities 
Ashtabula 

In  the  decisions3  which  overthrew  the  system  of  classification,  the 
court  granted  stay  of  execution  until  October  2,  1002,  to  enable  the  legisla- 
ture to  provide  a  new  frame-work  of  municipal   government.     Accordingly 

1.  This  table  is  taken  from  Wilcox,  Municipal  Government  in  Michigan  and 
Ohio,   p.    79. 

2.  .Revised  Statutes  of  Ohio   (1898)    Sec.  1546-1551. 

3.  The  'State  of  Ohio  ex  rel.  Knisely  et  al.  v.  Jones  et  al,  66  Ohio  State.  453. 
The  State  of  Ohio  ex  rel.  the  Attorney  General  v.  Beacom  et  al.,  66  Ohio  State,  491. 

30 


the  legislature  assembled  in  extraordinary  session  on  August  25,  1902,  and 
proceeded  to  adopt  a  new  municipal  code1  of  231  sections.  This  code  wis 
declared  by  the  Supreme  Court  to  be  a  general  and  constitutional  law.* 
Municipalities  were  classified  into  cities  and  villages,3  the  line  being  drawn  at 
five  thousand  population,  and  no  other  classification  was  attempted.  The  ag- 
gregate of  taxes  allowable  in  municipalities  was  ten  mills  on  each  dollar 
of  valuation  ;4  but  an  additional  levy  might  be  made  if  the  proposition  was 
submitted  to  the  electors  of  the  corporation  and  approved  by  two-thirds  of 
those  voting  upon  the  same.6  Council  was  to  have  power  to  borrow  money 
in  anticipation  of  the  general  revenue  fund,  but  not  exceeding  the  amount 
estimated  to  be  received  at  the  next  semi-annual  settlement  of  tax  collec- 
tions.6 Deficiency  bonds  could  be  issued  by  council  to  an  amount  not  ex- 
ceeding one  per  cent  of  the  total  assessed  value  of  the  property  in  the  cor- 
poration, provided  the  issuance  of  such  bonds  was  approved  by  two-thirds 
of  all  members  elected  to  council,  and  also  by  a  vote  of  two-thirds  of  all 
the  electors  voting  upon  the  proposition  at  a  regular  or  special  election  to 
be  provided  by  council.7 

IV.-DECISIONS   OF   THE    SUPREME   COURT. 

Appropriate  Local  Legislation  Not  Prohibited. 

Section  26  of  Article  II  of  the  Constitution  of  185 1  provides  that  "All 
laws  of  a  general  nature  shall  have  a  uniform  operation  throughout  the  state." 
It  will  be  noted  that  this  provision  does  not  prohibit  appropriate  local  legis- 
lation. It  does  not  require  that  all  enactments  of  the  legislature  shall  be 
of  a  general  nature,  and  it  is  therefore  entirely  competent  for  the  legislature 
to  pass  local  acts  on  subjects  of  a  local  nature.8  On  subjects  of  a  general 
D&ture,  however,  all  laws  must  operate  uniformly  throughout  the  state. 

This  Provision  Mandatory,  Not  Merely  Directory. 

The  whole  matter,  then,  hinges  on  the  question  whether  the  particular 
act  is  local  or  general  in  its  nature.  This  is  eventually  a  question  for  the 
court  to  decide:  in  other  words,  the  character  of  the  subject  matter  of  a 
law,  whether  general  or  special,  is  independent  of  legislative  declaration.9 
The  reason  why  the  decision  on  this  point  should  ultimately  be  left  for  the 
court  is  well  stated  by  Judge  Minshall  in  the  case  of  ■Silberman  et  al.  v. 
Hay:10  "As  to  the  nature  of  the  subject-matter,  the  legislature  is  not  the  ex- 
clusive judge.     If  it  were  otherwise,   then  this  important  provision  of  the 

1.  96  Ohio  Laws  20-106;  passed  Oct.  22,  1902,  became  effective   November  15,   1902. 

2.  Zumstein  v.  Mullen  et  al.,  67  Ohio  State,  382. 

3.  Section   1. 

4.  This  is  exclusive  of  the  levy  for  county  and  state  purposes,  for  schools  and 
school-house  purposes,  for  free  public  libraries  and  library  buildings,  for  university  and 
observatory  purposes,   for  hospitals   and  for  sinking  fund  and  interest. 

5.  Sec.   33-34. 

6.  Sec.   95. 

7.  Sec.  99. 

8.  Cricket  et  al.  v.  the  State  of  Ohio,  18  Ohio  State,  9;  Ohio  ex  rel.  v.  Covington 
et   al.,    29    Ohio    State,    10"2 ;    Hart  v.    Murray,    48   Ohio    State,    605;    Metcalf,    Auditor,    v. 

the  State  ex  rel.,    49  Ohio    State  586. 

9.  Falk,  Exp.,  42  Ohio  State,  638;  Costello  v.  Wyoming,  49  Ohio  State,  202;  Gay- 
lord  et  al.   v.  Hubbard,   Treasurer,   56   Ohio   State,   25. 

10.     59  Ohio  State,  582. 

31 


constitution  would  be  little  more  than  directory,  instead  of  mandatory  as  it 
undoubtedly  is.  The  greatest  respect  will  always  be  given  the  determina- 
tion of  the  legislature  in  enacting  the  law,  but  where  its  validity  is  prop- 
erly challenged  on  this  ground,  it  is  the  duty  of  the  court  to  pass  on  it,  and 
if  clearly  satisfied  that  the  provision  has  been  violated  in  making  that  a 
local,  which  should  have  been,  if  enacted  at  all,  a  general  law,  it  is  within 
the  power  of  the  court,  and  its  duty,  to  declare  it  invalid." 

Special  Act  Cannot  be  Made  General  by  Any  Form  it  May  be  Made  to 

Assume. 

In  deciding  whether  a  certain  act  is  general  or  special,  the  court  will 
consider  the  substance  of  the  act,  and  not  the  mere  form  it  may  be  made 
to  assume.  Thus  in  an  early  case1  the  court  declared:  "The  constitutional- 
ity of  an  act  is  to  be  determined  by  its  operation,  and  not  by  the  mere  form 
it  may  be  made  to  assume."  This  principle  the  court  has  repeatedly  af- 
firmed.* 

Subject  Matter  as  Determining  Character  of  a  Law. 

According  to  the  principle  laid  down  by  Judge  Scott  in  Kelly  v.  The 
State  of  Ohio,'  and  repeatedly  affirmed  in  later  decisions,  the  character  of  a 
law,  whether  general  or  special,  depends  largely  upon  the  character  of  its 
subject  matter.  "If  that  be  of  a  general  nature,  existing  throughout  the 
state,  in  every  county,  a  subject-matter  in  which  all  the  citizens  have  a 
common  interest — if  it  be  a  court  organized  under  the  constitution  and  laws, 
within  and  for  every  county  of  the  state,  and  possessing  a  legitimate  jur- 
isdiction over  every  citizen,  then  the  laws  which  relate  to  and  regulate  it 
are  laws  of  a  general  nature,  and  by  virtue  of  the  prohibition  referred  to 
must  have  a  uniform  operation  throughout  the  state." 

Definition  and  Illustration  of  General  Law. 

In  Heck  v.  The  State,4  the  following  definition  of  general  law  is 
given :  "A  law  is  general  and  uniform  that  applies  to  all  persons  and 
things  coming  within  its  provisions  throughout  the  state.  Its  uniformity 
consists  in  the  fact  that  no  person  or  thing,  of  the  description  of  any 
person    or    thing   affected   by   it,    is    exempt   from    its    operation." 

The  following  are  illustrations  of  acts  which  the  Ohio  Supreme  Court  has 
declared  to  be  of  general  nature,  requiring,  therefore,  uniformity  of  opera- 
tion throughout  the  state:  an  act  relating  to  the  jurisdiction  of  the  Court 
of  Common  Pleas;6  affecting  the  right  of  trial  by  jury;6  regulating  the  or- 
ganization and  management  of  common  schools;7  punishing  by  fine  and  im- 

1.  The  State  ex  rel.  v.  the  Judges  of  the  Court  of  Common  Pleas  of  the  First 
Judicial   District,    21    Ohio   State,    1. 

ft.  Ohio  ex  rel.  v.  Covington  et  al.,  29  Ohio  State,  102;  The  State  ex  rel.  v. 
Mitchell,  31  Ohio  State,  592;  the  State  v.  Powers,  38  Ohio  State,  54;  The  State  v. 
Pugh,   43   Ohio   State,  98. 

3.  6    Ohio    State,    269. 

4.  44   Ohio    State,   536. 

5.  Kelley  v.  The  State  of  Ohio.  6  Ohio  State,  269. 

6.  Silberman  et  al.  v.  Hay,  59  Ohio  State,  582. 

7.  The  State  v.  Powers,  38  Ohio  State,  54.  (Overruled  in  State  ex  rel.  v. 
Shearer  et  al,  46  Ohio  State,   275). 

32 


prisonment  any  person  found  with  burglar  tools  in  his  possession;1  requir- 
ing fire-escapes  on  buildings  over  three  stories  in  height;2  authorizing 
the  construction  and  improvement  of  streets  and  sidewalks;3  providing  for 
the  support  of  the  poor;4  providing  for  the  appointment  of  a  board  of 
equalization  and  assessment.6 

As  will  be  seen  later6  in  discussing  the  question  of  classification,  the 
court  has  uniformly  held  that  a  law  relating  to  certain  municipal  corporations 
as  a  class,  and  having  a  like  effect  upon  all  within  that  class,  is  general.7 

Illustrations  of  Local  Acts. 

The  following  are  instances  of  acts  which  the  court  has  held  to  be 
local  in  their  nature  and  which  therefore  need  not  be  uniform  in  opera- 
tion throughout  the  state:  regulating  the  compensation  of  local  officers;' 
detaching  territory  from  a  municipal  corporation;9  regulating  the  mode  of 
selecting  jurors;10  dividing  territory  into  school  districts.11 

Object  of  Article  XIII,  Section  I. 

The  motives  which  led  the  constitutional  convention  of  1851  to  adopt 
Section  1  of  Article  XIII  have  been  indicated  in  discussing  the  history  of 
that  convention.12  In  a  case13  decided  in  1864  the  Supreme  Court  of  Ohio 
declared  that  the  object  of  this  provision  of  the  constitution  was  "to  cor- 
rect an  existing  evil,  and  to  inaugurate  the  policy  of  placing  all  corpora- 
tions of  the  same  kind  upon  a  perfect  equality  as  to  all  future  grants  of 
power."  Again  in  1870  in  interpreting  the  same  section,  the  court  declared 
it  to  have  been  the  aim  of  the  convention  "to  cut  up  by  the  roots,  at  once 
and  forever,  all  capacity  of  the  general  assembly  to  confer  by  special  act 
any  powers  whatsoever  upon  any  corporate  body  whatsoever."14 

This  Provision  is  Restrictive  and  Mandatory. 

In  the  same  case  the  court  declared  Section  1  of  Article  XIII  to  be,  not 
directory,  but  restrictive  and  mandatory.  In  other  words,  this  provision 
does  not  depend  for  its  observance  solely  upon  the  good  faith  and  con- 
science of  the  legislature;  it  constitutes  a  direct  limitation  upon  the  legis- 
lative power,  and  subjects  the  action  of  the  legislature  upon  this  subject  to 

1.  Falk,   Exp.,   42   Ohio    State,  638. 

2.  City  of    Cincinnati  v.    Steinkamp,    Trustee,    54  Ohio   State,    285. 

3.  Costello  v.  Wyoming,  49  Ohio  State,  202;  Hixson  v.  Burson  et  ah,  54  Ohio 
State,    470;    Mott   et   ah   v.   Hubbard,    Treas.,    et   ah,    59    Ohio  State,  199. 

4.  The  State  ex  reh  v.  Bargus  et  ah,  53  Ohio  State,  94. 

5.  Gaylord   et  ah   v.   Hubbard,  Treas.,  56  Ohio  State,  25. 

6.  Infra,  pp.  36-37. 

7.  McGill  v.  The  State,  34  Ohio  State,  228;  The  State  v.  Powers,  38  Ohio  State, 
54;  Bronson  v.  Oberlin,  41  Ohio  State,  476;  The  State  ex  reh  v.  Hawkins,  44  Ohio 
State,  98;  The  State  ex  reh  v.  Hudson,  44  Ohio  State,  137;  Marmet  v.  The  State,  45 
Ohio  State,  63;  State  ex  reh  v.  City  of  Toledo,  48  Ohio  State,  112;  The  State  ex  rel. 
v.    Smith   et  ah,   48   Ohio   State,   221. 

8.  Cricket  et  ah  v.  The  State  of  Ohio,  18  Ohio  State,  9;  The  State  ex  reh  v. 
The  Judges,   21   Ohio   State,   1;   Hart  v.  Murray,   48  Ohio    State,   605. 

9.  Metcalf,    Auditor,   v.  The    State  ex  reh,   49   Ohio   State,   586. 

10.  McGill  v.  Tbe  State,  34  Ohio  State,  228. 

11.  State  ex  reh  v.   Shearer,   46   Ohio   State,   275    (Overrules  The  State  v.  Powers 
38  Ohio  State,  54). 

12.  Supra,  pp.   17-19. 

13      Atkinson  v.  The  Marietta  and   Cincinnati  Railroad  'Co.,   15   Ohio   State,  21. 
14.     The  State   ex  reh  v.  The  City  of   Cincinnati,   20  Ohio  State,   18. 

33 


judicial  review.1  To  this  doctrine  the  court  has  uniformly  adhered  in  a 
long  line  of  decisions.  In  reviewing  enactments  on  this  subject,  the  court 
has,  however,  invariably  shown  the  greatest  deference  toward  the  legislature. 
It  has  repeatedly  declared  that  acts  will  not  be  set  aside  as  special  unless 
they  clearly  contravene  the  provisions  of  the  constitution;*  and  further, 
that  constitutional  objections  are  not  to  be  raised  officiously,  and  will  not 
ordinarily  be  considered  by  the  court  unless  they  are  presented  in  the  peti- 
tion.* 

Applies  to  Municipal  as  Well  as  Private  Corporations. 

In  the  case  of  The  State  ex  rel.  v.  The  City  of  Cincinnati4  the  court 
laid  down  two  principles  of  great  importance  in  defining  the  scope  of  Sec- 
tion i,  Article  XIII.  The  first  of  these  was,  that  the  term  "corporation" 
as  used  in  this  section  includes  municipal  as  well  as  private  corporations. 
Counsel  for  the  city  had  argued  that  this  section  did  not  apply  to  municipal 
corporations,  a  contention  which  was  clearly  untenable  in  view  of  the 
wording  of  the  section  and  the  circumstances  attending  its  adoption.  The 
decision  on  this  point  was  subsequently  affirmed  in  the  case  of  The  State 
v.  The  City  of  Cincinnati,5  The  State  ex  rel.  v.  Mitchell,8  and  has  since  been 
accepted  as  conclusive. 

Applies  to  Amendments  of  Charter  as  Well  as  to  Original  Act  of 

Incorporation. 

A  second  principle  laid  down  in  The  State  ex  rel.  v.  The  City  of  Cin- 
cinnati,7 further  defined  the  scope  of  Section  i,  Article  XIII.  The  court 
declared  that  this  section  not  only  forbade  the  creation  <by  special  act  of 
a  new  corporation,  but  also  precluded  the  conferring  oi  additional  powers 
upon  a  corporation  already  existing.  The  point  of  the  decision  was  sub- 
sequently affirmed  in  The  State  v.  The  City  of  Cincinnati,8  reaffirmed  in 
The  State  ex  rel.  v.  Mitchell,9  and  has  been  followed  in  all  subsequent  cases. 
What  Are  Corporate  Powers? 

No  formal  definition  of  corporate  power  has  ever  been  given  by  the 
Supreme  Court,  but  the  numerous  decisions  on  this  subject  show  with  fair 
precision  the  sort  of  powers  included  within  this  class.  Until  the  recent 
decision  in  the  case  of  The  State  ex  rel.  Knisely  et  al  v.  Jones  et  al.  10  the 
court  has  usually  made  the  decision  as  to  what  are  corporate  powers  de- 
pend largely  upon  the  character  of  the  body  upon  which  they  are  conferred. 
This  distinction  is  well  illustrated  in  the  leading  case  of  The  State  v. 
Pugh.11  This  was  a  case  brought  to  test  the  constitutionality  of  an  act 
reorganizing   the    city    government    of    Columbus.    The    act    authorized    the 

1.  The  same  principle  is  asserted  by  the  Supreme  Court  of  Pennsylvania  in  Ayar's 
Appeal,  122  Pa.  State,  266.     See  infra,  page  53. 

2.  The    State    ex  rel.   v.    Hawkins,    44  Ohio    State,   98;    The    State   ex   rel.  v.    Wall 
et  al.,  47   Ohio   State,   499;  The   State   ex  rel.  v.   Baker   et  al.,   55   Ohio   State,   1. 

3.  The  State  ex  rel.  v.  Mitchell,  31  Ohio  State,  592;  The  State  v.  Pugh,  43  Ohio 
State,  98. 

4.  20  Ohio   State,   18. 

5.  23   Ohio    State,    445. 

6.  31   Ohio  State,  592. 

7.  20    Ohio    State,    18. 

8.  23   Ohio   State,  445. 

9.  31    Ohio    State,    592. 

10.  66  Ohio   State,  453;  infra,  p.   42. 

11.  43   Ohio    State,  98. 

34 


trustees  of  the  city's  sinking  fund  to  redistrict  the  city  into  wards,  and 
also  authorized  the  city  council  to  appoint  three  members  of  a  board  of 
control.  The  court  held  that  the  powers  conferred  upon  the  sinking  fund 
trustees  were  not  corporate  powers;  while  on  the  other  hand,  the  authority 
conferred  upon  council  to  appoint  three  members  of  a  board  of  control  was 
a  grant  of  corporate  power,  and  the  act  being  special,  it  was  consequently 
unconstitutional.  "What  constitutes  corporate  powers"  said  the  court 
"depends  largely  upon  whom  the  powers  in  question  are  conferred.  The 
conferring  of  certain  powers  upon  an  existing  corporation  may  bring  them 
within  the  designation  of  'corporate  powers,'  while  conferring  the  same  duties 
or  functions  upon  individuals,  fails  to  impart  to  them  the  attributes  of  cor- 
porate powers/  * 

When  powers  are  conferred  upon  a  corporate  body,  the  presumption  is 
that  these  are  corporate  powers.  "The  fact  alone  that  the  General  Assembly 
has  undertaken  to  confer  power  on  a  corporate  body  raises  a  strong  pre- 
sumption that  the  power  thus  sought  to  be  conferred  is  intended  to  be  cor- 
porate power,  and  in  the  absence  of  a  clear  showing  to  the  contrary,  the 
presumption  stands."2  By  the  act  involved  in  this  case,  the  village  councils 
of  Norwood  and  Pleasant  Ridge  were  authorized  to  nominate  two  freehold- 
ers to  act  as  trustees  in  making  certain  improvements,  and  the  measure 
was  held  unconstitutional  as  an  attempt  to  confer  corporate  power  by 
special  act.  It  was  contended  by  counsel  that  if  corporate  power  was  con- 
ferred upon  any  one  by  this  act,  it  was  upon  council  alone,  and  not  upon 
the  municipality.  The  court  quickly  disposed  of  this  contention  by  declaring 
that  inasmuch  as  council  is  the  governing  body  of  the  corporation,  power 
given  in  terms  to  council  is  in  effect  given  to  the  municipality. 

The  annexation  of  territory  to  a  city  has  likewise  been  held  to  be  an 
exercise  of  corporate  power,  inasmuch  as  such  annexation  gives  the  muni- 
cipality additional  powers  of  municipal  government,  police  regulation,  judi- 
cial jurisdiction  and  assessment  and  taxation.  Hence  a  special  act  which 
annexes  territory  is  void.3  On  the  other  hand,  detaching  territory  from 
a  municipality  does  not  confer  corporate  power  and  may  be  accomplished 
by  special  act.4 

The  following  are  other  instances  of  powers  which  the  Supreme  Court 
has  held  to  be  corporate  powers,  and  the  acts  granting  them,  being  special, 
were  therefore  unconstitutional:  giving  the  city  council  of  Cincinnati  power 
to  approve  the  regulations  adopted  by  the  trustees  of  the  Cincinnati  Com- 
mercial Hospital;5  authorizing  the  city  council  of  Columbus  to  direct  street 
improvements  and  issue  bonds  for  same;6  authorizing  the  city  of  Akron 
through  its  electors  to  choose  a  police  judge,  and  through  its  mayor  and 
council  to  appoint  a  prosecuting  attorney  and  clerk  of  court;7  and  empower- 
ing certain  villages  to  dedicate  their  property  to  the  county  for  road  pur- 
poses.8 

1.  The    State   V.    Pugh,    43    Ohio    State,    98    (110). 

2.  'Commissioners  v.   The   State  ex  rel.,   50   Ohio  State,   653    (657). 
8      The  State  ex  rel.  v.  Commissioners,   54  Ohio  State,  333. 

4.'  Metcalf,  Auditor,  v.   The   State  ex  rel.,   49  Ohio   State,   586. 

5.  The   State   v.    The    City   of  Cincinnati,   23    Ohio    State,   445. 

6.  The    State   ex   rel.    v.   'Mitchell,    31    Ohio    State,    592. 

7.  The  State    ex  rel.  v.  Anderson,    44    Ohio    State,   247. 

8.  The    State   ex  rel.   v.    Commissioners,  54   Ohio    State,   333 

35 


Classification  of  Cities  Held  Proper. 

The  manner  in  which  the  plan  of  classification  inaugurated  in  the  act1 
of  May  3,  1852,  was  subsequently  developed  into  the  most  elaborate  of  muni- 
cipal classification  systems  has  been  discussed.2  The  judicial  attitude  toward 
classification  was  first  shown  in  the  case  of  Welker  v.  Potter  and  Wife.* 
In  this  case  the  court  based  its  conclusions  upon  two  assumptions:  (1) 
that  it  is  proper  for  the  legislature  to  classify  the  cities  of  the  state;  and 
(2)  that  a  law  relating  to  all  members  of  a  class  is  general  and  not  special. 
The  particular  act  upheld  by  this  decision  operated  upon  "all  cities  of  the 
first  class  having  a  population  less  than  100,000  at  the  last  federal  census."* 
When  originally  passed,  this  act  applied  only  to  Cleveland,  but  at  the  time 
of  this  decision  Toledo  was  also  included  within  the  class   thus  defined. 

In  The  State  v.  Powers8  while  it  was  held  that  laws  regulating  the 
common  schools  were  of  a  general  nature  and  must  have  a  uniform  opera- 
tion throughout  the  state,  the  power  of  classification  was  distinctly  recog- 
nized. The  court  declared:  "On  subjects  concerning  which  uniformity  is 
required  *  *  *  judicious  classification  and  discrimination  between  classes 
will  not  destroy  the  required  uniformity." 

In  The  State  v.  Brewster,6  the  court  held  that  the  classification  pro- 
vided for  in  sections  1546-1550,  Revised  Statutes  of  Ohio,  was  authorized 
by  the  constitution.  The  court  said:  "The  validity  of  that  classification 
has  been  repeatedly  recognized  in  this  court,  and  the  reasons  for  adhering 
to  that  construction  of  the  constitution  are  cogent  and  satisfactory.  Hence 
we  hold  that  statutory  provisions  with  respect  to  any  such  class  are  for 
governmental  purposes,  general  legislation,  and  not  in  conflict  with  Article 
2,  Section  26,  nor  with  Article  13,  Section  6  of  the  constitution." 

The  Doctrine  of  Stare   Decisis. 

From  this  decision  on  the  court  based  its  conclusions  in  regard  to 
the  power  of  classification  upon  the  doctrine  of  stare  decisis.  Thus  in  the 
case  of  The  State  ex  rel.  v.  Hudson,7  the  court  declared:  "The  peace  and 
prosperity  of  these  cities,  and  the  best  interests  of  the  state,  require  that 
this  system  of  classification  be  regarded  as  stare  decisis  and  settled." 
Again  in  the  case  of  The  State  ex  rel.  v.  Cincinnati,8  it  was  stated  that 
classification  "has  become  so  firmly  established  that  it  is  no  longer  open 
to  controversy." 

Classification  Upheld  on  Ground  of  Necessity. 

In  explaining  the  reasons  which  led  the  court  to  sanction  the  legisla- 
ture's power  to  classify,  Judge  Minshall  said  in  The  State  ex  rel.  v.  Baker 

1.  An  act  to  provide  for  the  organization  of  Cities  and  Incorporated  Villages: 
50   Ohio   Laws,   223. 

2.  Supra,    pp    24-31. 

3.  18  Ohio  State,  85;  idem,  State  v.  Graham,  16  Neb.  74;  Pritchett  v.  Stanislaus 
Co  ,  73  Cal.  310.  For  other  leading  cases  on  classification,  see  70  N.  Y.  327;  77  Pa. 
State,   338;   40  N.  Y.    Law,  1,   123;  70  111.   388;    94  U.    S.   155. 

4.  Act  of  Apr.    5,  1866    (63    Ohio   Laws  133). 

5.  38  Ohio  State,  54. 

6.  39  Ohio  State,  653. 

7.  44  Ohio  State,  137. 

8.  52  Ohio  State,  419. 

36 


et  al.1  "It  is  not  to  be  supposed  that  *  *  *  it  was  intended  that 
the  cities  and  villages  of  the  state  were  to  be  governed  by  one  uniform 
system  of  laws,  applicable  alike  to  each  and  every  city  and  village  in  the 
state.  It  would  be  impossible  to  do  so,  and  adequately  provide  for  all  the 
necessities  of  the  various  cities  of  the  state,  differing  as  they  do  in  popula- 
tion, pursuits  and  locality;  and  it  is  fair  to  presume  that  this  was  as  well 
understood  by  those  who  made  and  adopted  the  constitution  as  by  those 
of  the  present  time.  *  *  The  power  of  the  General  Assembly  to  classify 
cities  and  enact  laws  applicable  to  particular  classes  so  formed,  cannot  now  be 
successfully  questioned.     It  should  be  regarded  as  stare  decisis." 

Classification  Must  be  Based  Upon  Reasonable  Grounds. 

Where  classification  legislation  has  been  upheld  under  constitutional 
restrictions  similar  to  those  found  in  the  Ohio  constitution,  the  courts 
have  generally  insisted  that  the  classification  adopted  by  the  legislature 
must  be  based  upon  reasonable  grounds.  Thus  in  the  case  of  The  State 
v.  Hammer,2  the  court  says:  "The  mark  of  distinction  on  which  the 
classification  is  founded  must  foe  such,  in  the  nature  of  things  as  will,  in 
some  reasonable  way  at  least,  account  for  or  justify  the  restriction  of  the 
legislature." 

The  same  rule  is  laid  down  by  the  Minnesota  court  in  the  case  of 
Nichols  v.  Walter,3  which  declares  that  "the  true  practical  limitation  of 
the  legislative  power  to  classify  is  that  the  classification  shall  be  upon 
some  apparent  natural  reason — some  reason  suggested  by  necessity,  by 
such  a  difference  in  the  situation  and  circumstances  of  the  subjects  placed 
in  different  classes  as  suggests  the  necessity  or  propriety  of  different  legis- 
lation with  respect  to  them." 

What  are  Proper  Bases  for  Classification? 

In  Ohio  a  similar  rule  obtains  and  it  will  be  noted  that  under  this 
rule,  population  is  not  the  only  proper  basis  for  classification.*  Thus  in 
the  case  of  Bronson  v.  Oberlin0  the  court  held  it  competent  for  the  legis- 
lature to  pass  an  act  affecting  "incorporated  villages  having  within  their 
limits  a  college  or  university,"  and  authorizing  such  villages  "to  provide 
against  the  evils  resulting  from  the  sale  of  intoxicating  liquors  therein." 
The  court  said:  "The  classification  must  be  just  and  reasonable,  and  not 
arbitrary.  In  the  act  under  consideration  the  classification  is  just  and  rea- 
sonable. It  groups  in  a  class  all  incorporated  villages  in  the  state  having 
within  them  a  college  or  university.  There  are  many  of  these  and  they 
are  located  in  all  sections.  *  *  The  value  of  their  property  and  their 
greater  value  as  suitable  resorts  for  the  education  of  youth,  depend  upon 
such  villages  being  kept  free  from  the  unrestrained  traffic  in  intoxicating 
liquors.  These  considerations  and  many  others  which  could  be  enumerated 
show  the  just  and  substantial  character  of  the  classification  made  in  this 
law,  and  the  wisdom  of  the  General  Assembly  in  making  it." 

1.  55   Ohio   State,   1. 

2.  42   N.  J.   Law,   485. 

3.  37    Minn.    264 

4.  Contra,  Commonwealth  v.  Patton,  88  Pa.   State,  258.     Infra,  p.  53. 

5.  41   Ohio  State,   476. 

37 


The  doctrine  of  Bronson  v.  Oberlin  was  affirmed  in  State  ex  rel.  v. 
Cincinnati1  where  the  court  declared:  "Nor  is  the  power  of  classification 
confined  to  that  based  upon  population  *  *  *  It  is  settled  that  proper 
classification  may  be  based  upon  the  peculiar  situation  of  municipalities, 
their  conditions,  internal  and  surrounding,  which  render  different  legisla- 
tion  with  respect  to  them  necessary,  or   especially  appropriate." 

An  illustration  of  what  the  court  deemed  an  improper  basis  of  classi- 
fication was  an  act*  applying  only  to  those  cities  "in  any  county  contain- 
ing cities  of  the  first  grade  of  the  first  class"  (Hamilton  County)  which 
had  failed  to  construct  sidewalks  under  a  previous  act.  In  the  case*  hold- 
ing this  measure  unconstitutional,  the  court  declared:  "The  requirements 
for  village  classification  *  *  *  will  not  be  satisfied  by  adopting  any 
common  mark  or  feature  that  will  serve  to  classify  *  *  *  The  objects 
grouped  for  classification  should  be  distinguished  by  characteristics  suf- 
ficiently marked  and  important  to  make  them  a  class  by  themselves.  *  *  * 
The  case  at  bar  presents  to  us  a  new  and  unique  classification  of  villages 
founded  on  an  incident  or  characteristic,  arbitrary  and  restrictive,  un- 
reasonable and  illusory." 

Classification  Must  be  Operative  From  Time  to  Time,  So  As  to  Permit 
Other  Cities  to  Enter  Classes  Established. 

Population  has  invariably  been  considered  a  proper  basis  of  classi- 
fication by  the  Ohio  court,  provided  the  plan  of  classification  is  so  arranged 
that,  without  additional  legislation,  other  cities  may  enter  the  classes  estab- 
lished. The  theory  is  that  under  a  classification  "  a  law  applying  to  a  cer- 
tain class  of  cities,  fixed  by  previous  legislation,  into  which  other  municipal 
corporations  may  enter,  and  from  which  they  may  pass  into  other  clasess  by 
increase  of  population,  is  not  special  but  general,  since  the  grade  of  any 
particular  city  is  not  designated  by  the  act,  but  depends  upon  its  growth  in 
population,  as  it  may,  by  such  growth,  pass  from  one  grade  or  class  to 
another."4  If,  however  the  act  is  so  worded  that  it  could  never  apply  to 
more  than  one  city,  it  is  special  and  unconstitutional.  'On  this  ground 
the  act  reorganizing  the  city  government  of  Columbus  was  held  uncon- 
stitutional in  State  v.  Pugh,6  as  the  court  upon  examining  the  terms  of  the 
act,  declared  it  to  be  "logically  and  physically  impossible  that  any  of  the  fore- 
going provisions  can  ever,  in  the  history  of  the  state,  apply  to  any  other 
city  than  Columbus." 

For  the  same  reason,  the  act  creating  a  board  of  city  affairs  in  cities 
of  the  first  grade,  first  class  (Cincinnati)  was  held  unconstitutional  in  The 
State  V.  Smith.6  The  act  in  question  required  the  bond  of  each  member 
of  this  board  to  be  approved  by  the  judges  of  the  Superior  Court.  The 
Supreme  Court  held  that  under  existing  legislation  this  measure  could  not 
possibly  apply  to  any   other   city  than  Cincinnati,  since   no  other   city  had 

1.  52  Ohio  State,  419. 

2.  Act   of  April  16,    1891    (88   Ohio   Laws   311). 
3      Costello   v.   Wyoming,    49   Ohio    State,   202. 

4.  The  State  ex  rel.  v.  Hawkins,  44  Ohio  State,  98;  see  also  State  ex  rel.  v. 
Cincinnati,  52    Ohio   State,   419. 

5.  43    Ohio  State,   98. 

6.  48  Ohio  State,  211. 

38 


a    Superior    Court.    The   act   was    therefore   adjudged   special   and   uncon- 
stitutional. 

Other  cases  which  lay  down  this  same  principle  are:  State  ex  rel.  v. 
Schwab,1  City  of  Kenton  v.  State,8  and  The  Pittsburg,  Fort  Wayne  and 
Chicago  Railway  Co.  v.  Martin.' 

Classification  May  be  Valid  Though  Only  One  City  is  Included  in  a 

Given  Class. 

It  is  not  fatal  to  an  act  general  in  its  terms  that  at  the  time  of  its 
passage  it  affects  but  one  city,  provided  it  is  so  framed  that  other  cities 
may  in  the  future  enter  the  class  designated,  and  so  come  within  its  opera- 
tion.* This  point  is  clearly  brought  out  in  the  leading  case  of  The  State 
v.  Pugh,*  in  which  the  doctrine  of  classification  is  thus  stated:  "It  is 
not  to  be  urged  against  legislation,  general  in  form,  concerning  cities  of 
a  designated  class  and  grade,  that  but  one  city  in  the  state  is  within  the 
particular  classification  at  the  time  of  its  enactment. 

"Nor  is  it  fatal  to  the  act  in  question  that  the  belief  or  intent  of  the 
individual  members  of  the  General  Assembly  who  voted  for  the  act  was  that 
it  should  apply  only  to  a  particular  city.  *  *  *  Although  it  is  admitted 
that  no  other  city  than  Columbus  is  within,  or  can  before  July  next,  come 
within  the  class  and  grade  contemplated  by  the  act,  yet,  if  any  other 
city  may,  in  the  future,  by  virtue  of  its  increase  in  population  and  the 
action  of  municipal  authorities,  ripen  into  a  city  of  the  same  class  and 
grade,  and  come  within  the  operation  of  the  act,  it  is  still  a  law  of  a 
general  nature  and  is  not  invalid,  even  if  it  confer  corporate  powers. 

"On  the  other  hand,  if  it  is  clear  that  no  other  city  in  the  state  can  in 
the  future  come  within  its  operation  without  doing  violence  to  the  manifest 
object  and  purpose  of  its  enactment,  and  to  the  clear  legislative  intent,  it 
is  a  local  and  special  act,  however  strongly  the  form  it  is  made  to  assume 
may  suggest  a  general  character." 

The  same  rule  is  clearly  stated  both  in  The  State  ex  rel.  v.  Smith,"  and 
the  State  ex  rel.  v.  Baker,7  in  the  following  language:  "It  is  the  possibility 
that  other  cities  may  enter  a  certain  grade  of  a  class,  and  not  the  certainty 
that  they  will,  that  gives  to  a  law  creating  the  grade  a  general  character." 

Advancement  of   Cities   Not   Compulsory. 

Mere  increase  of  population  is  not  alone  sufficient  to  raise  a  city  from 
one  grade  or  class  to  another  without  some  affirmative  action  on  the  part 
of  the  city  in  question.8  Unless  this  action  is  taken  by  the  municipal 
authorities,  the  city  continues  in  its  old  grade  and  class — the  advancement 
to  a  higher  grade  or  class  not  operating  of  itself.9     In  the  case  of  Hays 

1.  49  Ohio  iState,  229. 

2.  52    Ohio    State,    59. 

3.  53    Ohio    State,    386. 

4.  The  same  rule  is  laid  down  in  Wheeler  v.  Philadelphia,  77  Pa.  State,  338. 

5.  4i3    Ohio    State,   98. 

6.  48  Ohio  State,  211   (218). 

7.  55    Ohio    State,    1     (11). 

8.  On  the  subject  of  advancement,  see  supra,  p.   25,  infra,  p.   41,  50. 

9.  The   State   ex  rel.   v.  Wall   et  al.,   47  Ohio   State,   499. 

39 


and  Son  v.  The  City  of  Cleveland,  the  court  declared  that  "the  advancement 
of  a  city  from  the  second  grade  to  the  first  grade  of  its  class  could  be 
prevented  by  the  action  of  the  city  council  declaring  it  inexpedient  to  do  so." 
Finally  the  matter  of  advancement  was  placed  absolutely  under  muni- 
cipal discretion  by  a  statute  passed  April  15,  1892,2  which  forbade  advance- 
ment "unless  the  council  should  first  by  a  two-thirds  vote  of  all  members 
declare  a  change  of  grade  or  class  to  be  expedient."  This  act  was  sus- 
tained in  the  case  of  Brady  v.  The  State,*  when  the  court  declared:  "This 
amendment  worked  a  complete  change  in  the  policy  of  the  law  in  relation  to 
changing  the  grades  and  classes  of  municipal  corporations.  Before,  the 
general  policy  was  to  have  a  municipal  corporation  advance  or  change  its 
grade,  etc.,  by  operation  of  law  alone,  unless  its  council  should  declare 
it  inexpedient  to  do  so,  but  by  the  amendment  before  noted  the  policy 
was  changed  so  that  municipalities  would  remain  in  their  existing  grades 
and  classes,  notwithstanding  a  change  of  population,  unless  the  council  by 
a  two-thirds  vote  of  all  its  members  should  decide  to  have  it  changed." 

Classification  Overthrown  in  Recent  Decisions. 

Several  years  prior  to  1902,  when  the  entire  system  of  classification 
was  overthrown,  the  Supreme  Court  had  indicated  its  distrust  of  classifica- 
tion. Thus  in  the  case  of  The  State  ex  rel.  v.  Wall  et  a/.,4  (decided  in 
1890),  the  court  said:  ^Grave  doubts  may  well  be  entertained  as  to  the 
constitutionality  of  this  method  of  classifying  cities  for  the  purpose  of 
general  legislation."  Again  in  the  following  years,  in  the  case  of  The 
State  ex  rel.  v.  Smith  et  a/.,5  the  court  said :  "It  must  be  conceded  that 
the  method  of  classifying  cities  for  the  purpose  of  legislation  has  been 
carried  to  the  very  verge  of  constitutional  authority."  At  the  January  term 
of  1896  in  the  case  of  The  City  of  Cincinnati  v.  Steinkamp,  Trustee,6  the 
court  said:  "Realizing,  as  every  observer  must,  the  growing  tendency  to 
render  this  limitation  on  legislative  power  directory  merely,  and  to  treat  it 
as  if  it  were  devoid  even  of  moral  obligation,  by  resorting  to  local  legisla- 
tion upon  matters  which,  if  of  importance,  concern  the  people  of  all  parts 
of  the  state,  we  are  impelled  by  duty,  whenever  such  acts  are  brought  be- 
fore us  for  review  and  their  invalidity  appears  clear,  to  so  declare."  In 
the  case  of  Hixson  v.  Burson  et  a/.,7  the  court  spoke  still  more  strongly: 
"The  doctrine  of  classification  has  nearly  wiped  out  the  limitation  as  to 
general  laws  in  section  six  of  article  thirteen  of  the  constitution,  and 
should  itself  be  overruled,  so  as  to  enable  us  to  get  back  to  the  whole- 
some provisions  of  that  section." 

In  the  case  of  The  City  of  Cincinnati  v.  Taft  et  al.,8  (decided  in  1900), 
the  court  discussed  the  doctrine  of  stare  decisis  with  reference  to  classifica- 
tion legislation,   and  declared  that  when  classification  became  merely  isola- 

1.  55  Ohio  State,  117. 

2.  89  Ohio  Laws,  302. 

3.  59  Ohio  State,  546. 

4.  47  Ohio  State,  499. 

5.  48  Ohio  State,  211. 

6.  54   Ohio  State,  285. 

7.  54   Ohio  State,  470. 

8.  63  Ohio  State,  141. 

40 


tion,  stare  decisis  should  not  prevail.  The  particular  act  in  question  was 
sustained  under  the  rule  requiring  stability  of  judgments,  but  the  court 
intimated  that  similar  acts  would  not  be  upheld  in  other  cases,  and  also 
hinted  at  its  opinion  that  the  classification  contained  in  the  constitution 
was  an  exclusive  one. 

In  the  year  1901,  in  the  case  of  The  State  ex  rel.  Sheets  v.  Cowles 
et  al.,1  the  court  laid  down  four  important  propositions:  (1)  That 
classification  was  originally  upheld  in  the  belief  that  ultimately  other  cities 
would  come  under  the  operation  of  laws  applying  to  all  of  a  class — instead 
of  which  classification  has  become  mere  isolation:  (2)  Since  the  effect  of 
this  doctrine  became  apparent,  the  cases  sustaining  classification  have  been 
followed  without  approval;  (3)  The  doctrine  of  classification  is  not  to  be 
extended;  and  (4)  An  attempted  classification  in  order  to  evade  section 
26,  Article  II,  of  the  constitution,  is  not  valid. 

These  earlier  decisions  paved  the  way  for  the  decision  rendered  in  1902 
in  the  case  of  The  State  ex  rel.  Knisely  et  al  v.  Jones  et  al.?  which  finally 
destroyed  the  whole  system  of  classification.  This  was  a  case  in  mandamus 
in  which  the  relators,  who  claimed  to  be  the  police  commissioners  of  Toledo 
under  authority  of  the  act  of  April  27,  1902,  demanded  possession  of  the 
books  and  property  of  the  police  department,  held  by  the  defendants,  who, 
denying  the  validity  of  said  act,  claimed  to  be  the  legal  commissioners. 
The  act  in  question,  following  the  usual  formula  of  classification  legislation, 
had  provided:  "All  police  powers  and  duties  connected  with  and  incident 
to  the  appointment,  regulation  and  government  of  a  police  force  in  cities 
of  the  third  grade  of  the  first  class,  shall  be  vested  in  and  exercised  by  a 
board  of  police  commissioners,  to  be  appointed  by  the  governor." 

In  its  opinion  holding  this  law  unconstitutional,  the  court  pointed  out 
that  the  doctrine  sustaining  the  original  classification  of  cities  did  not  sus- 
tain the  classification  involved  in  the  present  case.3  Originally,  "by  an  un- 
varying rule  the  characteristic  of  population  was  made  the  basis  of  the 
classification,  and  it  was  made  inevitable  that  every  city  attaining  a  popula- 
tion of  twenty  thousand  should  advance  and  become  a  city  of  the  first  class ; 
and  that  every  village  attaining  a  population  of  five  thousand  should  become 
a  city  of  the  second  class.  *  *  *  Two  things  were  true  and  they  were 
of  the  essence  of  the  doctrine.  Advancement  was  by  a  rule  of  unvarying  ap- 
plication, and  every  municipality  might  become  subject  to  the  operation  of 
every  statute  conferring  corporate  power  upon  its  own  or  a  higher  class. 
*  *  *  Sections  1546  to  1552  of  the  Revised  Statutes  relate  exclusively 
to  the  subject  of  classification.  The  first  of  these  sections  now  provides 
that  cities  of  the  first  class  shall  be  of  three  grades,  and  cities  of  the  sec- 
ond class  shall  be  of  eight  grades.  In  the  present  view  grades  of  classes 
are  but  added  classes.  In  these  eleven  classes  the  eleven  principal  cities  of 
the  state  are  isolated,  so  that  an  act  conferring  corporate  power  upon  one 
of  them  by  classified  description,  confers  it  upon  no  other.  They  have  been 
isolated  under  the  guise  of  classification,  as  their  growth  promised  realiza- 
tion of  the  belief  which  was  the  foundation  of  the  judicial  doctrine  of  classi- 

1.  64  Ohio  State,  162. 

2.  66  Ohio   State,  453. 

3.  Concerning  advancement,    see   supra,  pp.    25,   39. 

41 


fication,  viz:  that  their  advancement  under  the  unvarying  rule  of  popula- 
tion would  give  a  wider  operation  to  acts  conferring  corporate  powers.  *  *  * 
The  judicial  doctrine  of  classification  was,  that  all  cities  having  the  same 
characteristic  of  a  substantial  equality  of  population,  should  have  the  same 
corporate  power,  although  another  class  might  be  formed  upon  a  sub- 
stantial difference  in  population.  The  classification  now  provided  affords  no 
reason  for  the  belief  that  it  is  based  upon  such  substantial  difference  in 
population  as  the  judicial  doctrine  contemplated.  *  *  *  The  increas- 
ingly numerous  classes  of  municipalities  show  that  even  when  a  difference 
in  population  is  made  to  appear  as  the  basis  of  classification,  the  differences 
in  population  are  so  trivial  that  they  cannot  be  regarded  as  the  real  basis. 
*  *  *  In  view  of  the  trivial  differences  in  population,  and  of  the  nature 
of  the  powers  conferred,  it  appears  from  such  examination,  that  the  present 
classification  cannot  be  regarded  as  based  upon  differences  in  population, 
or  upon  any  other  real  or  supposed  differences  in  local  requirements.  Its 
real  basis  is  found  in  the  differing  views  or  interests  of  those  who  promote 
legislation  for  the  different  municipalities  of  the  state.  An  intention  to  do 
that  which  would  be  violative  of  the  organic  law  should  not  be  imputed  up- 
on mere  suspicion.  But  the  body  of  legislation  relating  to  this  subject  shows 
the  legislative  intent  to  substitute  isolation  for  classification,  so  that  all  the 
municipalities  of  the  state  which  are  large  enough  to  attract  attention  shall 
be  denied  the  protection  intended  to  be  afforded  by  this  section  of  the  con- 
stitution. The  provisions  of  the  section  could  not  be  more  clear  or1  im- 
perative, and  relief  from  the  present  confusion  of  municipal  acts  and  the 
burdens  which  they  impose  would  not  be  afforded  by  its  amendment.  Since 
we  cannot  admit  that  legislative  power  is  in  its  nature  illimitable,  we  must 
conclude  that  this  provision  of  the  paramount  law  annuls  the  acts  relating 
to  Cleveland  and  Toledo,  if  they  confer  corporate  power. 

"Counsel  for  the  relators,  in  support  of  the  act  relating  to  Toledo,  urge 
the  conclusion  that  even  though  the  act  should  be  regarded  as  special,  it  is 
not  repugnant  to  this  section  of  the  constitution,  because,  in  their  view, 
it  does  not  confer  corporate  powers.  *  *  *  Though  it  might  be  dif- 
ficult to  give  a  conceptual  definition  of  corporate  powers  which  would  be 
found  complete  and  accurate  in  all  cases,  an  accurate  descriptive  definition 
readily  occurs,  and  it  is  sufficient  for  present  purposes.  They  are  such 
powers  as  are  usually  conferred  upon  corporations.  In  the  present  aspect  of 
the  subject  they  are  such  powers  as  are  usually  conferred  upon  municipal 
corporations.     They  are  classified  by  Judge  Dillon  as  follows: 

"  'If  we  analyze  the  complex  powers  usually  conferred  upon  a  municipality 
in  this  country  we  shall  discover  that  these  are  of  two  general  classes, 
viz.:  (i)  Those  which  relate  to  health,  good  government,  efficient  police, 
etc.,  in  which  all  the  inhabitants  have  an  equal  interest  and  ought  to  have 
an  equal  voice.  (2)  Those  which  directly  involve  the  expenditure  of 
money  and  especially  those  relating  to  local  improvements  the  expense  of 
which  ultimately  falls  upon  the  property  owners.' 

"Surely  we  shall  not  err  if  we  regard  the  phrase  'corporate  powers,'  as 
embracing  all  the  powers  which,  within  the  observation  of  those  who 
framed   and   adopted   the   constitution,   were    conferred   upon  and   exercised 

42 


by  all  the  cities  of  the  state.*  Of  these  powers  perhaps  none  is  more  con- 
spicuously exercised  than  that  of  maintaining  the  public  order  and  enforcing 
municipal  ordinances." 

After  fifty  years  of  special  legislation,  the  Supreme  Court  had  at  last 
announced  its  determination  to  give  effect  to  the  constitutional  limitations 
upon  this  subject.  Under  the  view  of  classification  and  the  broad  definition 
of  corporate  powers  in  this  case,  the  government  of  practically  every  muni- 
cipality in  the  state  was  clearly  invalid.  The  act  of  March  16,  1891,'  organiz- 
ing the  city  government  of  'Cleveland,  was  declared  unconstitutional  upon 
the  same  ground  as  the  case  just  cited,  and  the  decision*  was  announced 
on  the  same  day,  June  26,  1902.  Judgment  of  ouster  was  granted  against 
the  city  officials,  but  execution  of  that  judgment  was  suspended  until 
October  2,  1902,  so  as  to  give  the  legislature  opportunity  to  provide  new 
municipal  machinery  for  the  cities  of  the  state.4 

1.  Compare  with  the  narrower  definition  of  corporate  powers  given  in  The  State  »► 
Pugh,  43  Ohio  State,   98,  supra,  p.  34. 

2.  88  Ohio  Laws,  105. 

3.  The  State  of  Ohio  ex  rel.  The  Attorney  General  v.  Beacom  et  al.,  66  Ohio 
State,  491. 

4.  Supra,  pp.  30-31. 


43 


CHAPTER*  IV. 

History  of  Pennsylvania's  Attempt  to  Prohibit 
Special  Municipal  Legislation. 

I.— CONSTITUTIONAL  CONVENTION 
OF  1872-73. 

The  present  constitution  of  Pennsylvania  was  drawn  up  by  a  con- 
vention—the fourth  in  the  history  of  the  state — which  assembled  at  Har- 
risburg,  Nov.  12,  1872.  It  was  composed  of  132  members  who  chose  for 
their  president,  William  M.  Meredith  of  Philadelphia.  The  organization  hav- 
ing been  perfected,  standing  committees  appointed  and  preliminary  business 
completed,  the  convention  adjourned  Nov.  27,  1872,  to  meet  in  Philadelphia 
the  following  January — having  accepted  the  invitation  of  the  Philadelphia 
council  to  meet  in  that  city.  The  convention  convened  at  Philadelphia 
Jan.  7,  1873,  and  continued  its  sessions  until  July  15,  when  a  recess  was 
taken  until  September.  Again  assembling  September  16,  the  convention 
continued  its  sessions  until  its  work  was  completed  on  November  3,  1873, 
-whereupon  it  adjourned  to  meet  at  Harrisburg,  December  27,  1873,  to 
receive  and  count  the  returns.  The  vote  on  the  constitution  resulted:  In 
favor  of  adoption,  253,560;  against  adoption,  109,108;  plurality  in  favor  of 
the  constitution,  144,362. 

The  convention  had  been  summoned  largely  in  response  to  a  popular 
demand  that  certain  grave  abuses  be  checked  by  restricting  the  power  of 
the  state  legislature,1  and  throughout  its  work  the  convention  kept  this 
purpose  constantly  in  view.  To  those  studying  municipal  government, 
the  chief  interest  in  the  convention  debates  lies  in  the  proposed  limitations 
upon  legislative  control  of  cities.  Two  of  the  standing  committees  recom- 
mended that  the  general  assembly's  power  of  control  over  municipal  cor- 
porations be  limited  by  constitutional  provision  in  three  important  respects : 
(1)  By  forbidding  the  general  assembly  to  pass  any  local  or  special  law 
regulating  the  affairs  of  cities.  (2)  By  providing  that  the  general  assembly 
should  not  delegate  its  power  over  municipal  administration  to  any  special 
commission,  private  corporation  or  association.  (3)  By  delimiting  a  sphere 
01  local  autonomy  within  which  municipal  corporations  should  have  the 
right  to  pass  laws  for  their  own  regulation.  The  first  two  of  these  limita- 
tions were  recommended  by  the  committee  on  legislation,  as  well  as  by 
the  committee  on  cities  and  city  charters;  the  third  limitation  was  recom- 
mended only  by  the  latter  committee. 

1.  See  Dickson,  Development  in  Pennsylvania  of  Constitutional  Restraints  upon 
the   Power   and   Procedure   of  the   Legislature,   p.    24   et  seq. 

44 


On  the  advisability  of  prohibiting  local  legislation  with  reference  to> 
cities,  the  convention  was  practically  a  unit.  The  committee  on  legisla- 
tion recommended  the  prohibition  of  special  or  local  laws  upon  a  num- 
ber of  subjects,  including  measures  "regulating  the  affairs  of  counties,  cities,. 
townships,  wards,  boroughs,  or  school  districts."1  This  part  of  the  com- 
mittee's report  prohibiting  special  or  local  laws  upon  some  twenty-six  dif- 
ferent subjects  was  discussed  by  the  convention,  section  by  section;*  but 
the  particular  section  quoted  above,  prohibiting  special  or  local  laws  con- 
cerning cities,  was  passed  without  discussion,  so  unanimous  was  the  senti- 
ment in  its  favor.8  A  similar  provision  was  recommended  by  the  com- 
mittee on  cities  and  city  charters,4  but  this  part  of  their  report  was  stricken 
out,  the  matter  having  been  already  provided  for  by  the  adoption  of  the 
section  as  recommended  by  the  committee  on  legislation.8 

The  strong  sentiment  in  the  convention  against  special  legislation  is 
well  illustrated  by  the  speech  of  Mr.  Mantor,6  who  pointed  out  that  in  the 
seven  years  from  1866  to  1872,  both  inclusive,  the  legislature  had  passed 
475  general  laws  and  8,775  private  acts.7  Continuing,  he  said:  "But,  Mr. 
Chairman,  what  a  fearful  commentary  is  this  on  the  abuses  of  special  leg- 
islation!  *  *  *  What  sort  of  justice,  I  ask,  can  there  be  that  will  allow 
the  law-making  power  in  this  state  to  change  at  each  and  every  session 
of  the  legislature,  some  act,  because  a  few  favored  citizens  desire  it?  *  *  * 
Necessary  legislation  is  greatly  retarded,  the  expenses  to  the  common- 
wealth are  greatly  enlarged,  the  assumption  of  such  rights  degrades  the 
dignity  of  any  legislative  body,  and  withal  impairs  the  efficiency  of  legisla- 
tion for  good  to  the  whole  people.    *    *    * 

"The  people  all  over  the  state  are  asking  that  we  shall  circumscribe 
the  acts  of  our  legislature  by  incorporating  in  this  constitution  a  section 
like  this,  that  will  make  all  laws  general.  I  am  one  of  those  who  believe 
that  nearly  all  objects  for  legislation  can  be  equally  accomplished  under 
general  law.  *  *  *  It  will  not  be  denied  that  there  is  a  fevered  anxiety 
about  the  abuses  growing  out  of  special  privileges.  We  should  meet  this 
matter  at  the  threshold  and  grapple  it  with  the  strong  arms  of  the  Con- 
stitution, only  looking  to  the  best  interests  of  the  present  and  the  neces- 
sities of  the  future." 

Equally  unanimous  was  the  sentiment  of  the  convention  against  the 
delegation    of   legislative    power     to     municipal     commissions.    Accordingly, 

1.  Constitution  of   Pennsylvania,   Art.   Ill,   Sec.   7. 

2.  Debates  Pennsylvania  Constitutional  Convention,  II,  589-622;  V,  248-267;  VII, 
332-436. 

3.  Ibid,    II.    593. 

4.  Debates    Penn.    Constitutional    Convention,    II,    35. 

5.  Ibid,   VI,  225. 

6.  Ibid,  II,  590. 

7.  These  acts   were  distributed   as  follows: 

Year  General  laws.  Special  laws. 

1866'. 50 1096 

1867 86 1392 

1868 73 1150 

1869 77 1276 

1870 54 1276 

1871 81 1353 

1872  ... 54 1232 

Total,     1866-1872 475 8775 

45 


with  a  view  to  restrict  legislative  power  in  this  respect,  the  Committee  on 
Legislation  reported  a  provision  as  follows:  "The  General  Assembly  shall 
not  delegate  to  any  special  commission,  private  corporation  or  association, 
any  power  to  make,  supervise,  or  interfere  with  any  municipal  improve- 
ment, money,  property  or  effects  whether  held  in  trust  or  otherwise,  or  to 
levy  taxes  or  perform  any  municipal  function  whatever."1 

In  discussing  this  section,  Mr.  Newlin  of  Philadelphia  pointed  out 
that  in  that  city  the  legislature  had  created  a  commission  not  a  single 
member  of  which  was  elected  by  the  people,  and  none  of  whose  proceedings 
could  be  reviewed  by  any  other  body,  which  had  increased  the  debt  of  the 
city  by  thirteen  million  dollars." 

An  able  speech  in  favor  of  the  provision  was  made  by  Mr.  Worrell, 
who  declared  such  a  limitation  to  be  one  of  the  most  necessary  reforms 
presented  for  the  consideration  of  the  convention.  "If  we  leave  with  the 
legislature  the  power  to  create  commissions,  which  shall  absorb  and  exercise 
the  proper  and  legitimate  functions  of  the  various  municipalities,  it  would 
be  wise  not  to  attempt  to  reform  municipal  governments,  and  not  to  take 
any  action  affecting  cities  and  city  charters.  *  *  *  If  the  legislature  be 
vested  with  the  right  of  quartering  upon  a  city,  without  its  consent,  irresponsi- 
ble commissions,  to  exercise  any  or  all  of  the  powers  and  functions  of 
the  municipal  departments,  it  will  practically  nullify  any  provision  intended 
to  secure  intelligent,  independent  and  responsible  government  of  the  various 
political  districts  of  the  Commonwealth.  No  legislation  has  been  more  gen- 
erally condemned  than  that  which  restrains  a  municipality  in  the  exercise  of 
the  powers  of  local  government. 

"Mr.  Chairman,  no  local  public  improvement  should  be  authorized  or 
directed  until  the  municipality  has  determined  that  such  improvement  is 
needed,  and  that  the  condition  of  the  city  finances  will  warrant  the  proper 
expenditure  on  that  account;  and  unless  these  considerations  are  determined 
affirmatively  by  the  municipality,  the  people  should  not  be  subjected  to  bur- 
densome taxation  by  the  legislature  or  any  other  body,  for  the  purpose 
of  erecting  unneeded  improvements,  or  those  which  the  public  treasury  will 
not  justify."3 

Mr.  Gowen  of  Philadelphia  declared  himself  in  favor  of  going  even 
further  than  was  proposed  by  the  committee,  and  accordingly  presented  an 
amendment  making  it  the  duty  of  the  Legislature,  in  all  cases  where  such 
commissions  had  been  created,  to  provide  for  vesting  all  such  power  directly 
in  the  local  authorities.4  This  amendment  was  rejected  and  the  original 
provision  was  then  adopted. 

One  of  the  most  interesting  features  of  the  convention  was  the  unsuc- 
cessful effort  made  to  secure  the  adoption  of  a  constitutional  provision 
delimiting  a  sphere  of  local  autonomy  within  which  municipalities  should  be 
free  from  legislative  interference.  Such  a  provision  was  recommended  in 
the  following  terms  by  the  committee  on  cities  and  city  charters  in  the 
latter   part    of    Section   4    of   its    report:      "Every   municipality   shall    have 

1.  Constitution   of  Pennsylvania,  Art.   HI,   Sec.    20. 

2.  Debates,  II,  697. 

3.  Debates,  II,  698  et  seq. 

4.  Debates,  II,  699. 

46 


ower  to  pass  laws  for  its  own  regulation  not  repugnant  to  the  Constitu- 
ion  of  the  United  States  or  of  the  Commonwealth."1 

Mr.  Dallas  of  Philadelphia  proposed  to  amend  this  section  by  inserting 
le  word  "exclusive"  so  that  the  provision  would  read,  "Every  municipality 
hall  have  exclusive  power,"  etc.  Supporting  his  amendment,  Mr.  Dallas 
aid :  "The  purpose  I  had  in  view  in  proposing  to  insert  the  word  'exclusive' 
ras  simply  to  give  to  the  local  authorities  of  a  city  the  exclusive  power  to 
overn  its  own  internal  affairs,  my  view  being  that  for  every  local  com- 
munity there  should  be  local  self-government  in  all  those  matters  which 
ffect  only  the  locality  meaning  thereby  their  interior  regulations."2 

Similar  views  were  voiced  by  Mr.  Littleton  of  Philadelphia  who  de- 
iared:  "I  hope  that  the  Convention  will  see  that  there  is  some  propriety 
1  giving  the  local  authorities  of  large  cities  absolute  control  over  matters 
urely  local  in  their  nature.  Why  should  we  have  to  go  to  the  Legislature 
nd  ask  acts  of  Assembly  to  be  voted  upon  by  men  living  two  or  three 
undred  miles  away  from  a  city  like  Philadelphia  to  regulate  its  local  af- 
iirs?  Of  course,  those  members  are  not  able  to  know  the  particular 
eeds  and  wants  of  the  city."* 

The  first  speaker  in  opposition  to  the  amendment  was  Mr.  Armstrong  of 
/illiamsport  who  stated  that  if  this  were  a  question  that  affected  Phila- 
elphia  alone  he  would  be  disposed  to  follow  the  judgment  of  the  delegates 
ho  represented  that  city;  but  that  he  believed  it  would  be  highly  danger- 
us  to  extend  such  a  power  to  cities  all  over  the  state.* 

Mr.  Ewing  of  Pittsburg  also  declared  himself  opposed  to  the  provision 
n  the  ground  that  it  was  an  unnecessary  restriction  upon  the  legislature's 
ower,  and  a  dangerous  grant  of  power  to  city  councils.  "We  may  well 
?ave  the  government  of  the  cities  to  be  determined  by  the  Legislature  under 
le  restrictions  which  we  have  already  laid  down  for  the  Legislature.  We 
ave  provided  that  they  shall  only  pass  general  laws ;  we  have  hedged  in 
leir  power  and  authority  and  their  manner  of  passing  laws,  so  that  I  think 
re  can  fairly  trust  them  to  delegate  to  the  municipal  governments  the  nec- 
ssary  power  to  regulate  their  own  internal  affairs.  *  *  *  I  suppose  if 
re  finally  pass  the  article  on  Legislation,  which  has  already  passed  on  sec- 
nd  reading,  it  will  be  utterly  impossible  for  the  Legislature  to  enforce  the 
ind  of  acts  that  have  been  complained  of — local  and  special  laws  affecting 
articular  localities  in  the  different  cities." 

Continuing,  Mr.  Ewing  further  urged  that  councils  were  unworthy  to  be 
ntrusted  with  so  great  a  power.  "As  a  matter  of  experience  in  our  region 
f  the  state  and  in  our  city,  the  very  worst  legislation  we  have  ever  had 
-i  relation  to  the  city  has  been  that  which  was  asked  and  demanded  of  the 
,egislature  by  the  city  council — I  mean  special  local  legislation — and  fre- 
uently  the  Legislature  has  stood  guard  between  the  people  and  the  city 
Quncils,  and  has  refused  to  pass  legislation  that  was  asked  by  the  city  coun- 
ils  and  which  would  have  been  very  injurious  to  the  people  of  the  city."5 


47 


1. 

Debates, 

II, 

35. 

2. 

Debates, 

VI, 

227. 

8. 

Deibates, 

VI, 

228. 

4. 

Debates, 

VI, 

228. 

5. 

Debates, 

VI, 

229. 

This  speech  was  ably  answered  by  Mr.  Bardsley  of  Philadelphia,  who 
urged  that  city  councils  could  properly  be  clothed  with  the  proposed 
powers.  "The  members  of  the  city  councils  are  the  direct  representatives 
of  the  people  of  the  city.  They  come  from  their  own  neighborhoods;  they 
come  there  elected  by  their  immediate  friends  and  constituents;  and  the 
power  is  held  by  the  people  once  every  year  to  turn  out  of  office  those 
who  will  not  study  the  interests  of  the  whole  community.  The  experience 
of  the  cities  with  their  members  of  the  Legislature  is  such  as  to  make  the 
people  earnest  and  anxious  in  the  desire  that  this  Convention  shall  make  a 
ladical  reform  in  the  particular  now  under  consideration.  What  we  ask 
in  this  city,  for  example,  is  that  we  shall  be  allowed  to  pass  such  laws  as 
will  best  conduce  to  the  comfort  and  prosperity  of  our  people*  *  *  We 
ask  that  we  may  be  allowed  to  use  our  own  judgment,  that  we  may 
be  allowed  to  be  instructed  by  our  own  people  as  to  what 
legislation  is  needed  and  required  for  the  cities,  and  I  hope  that  this  Con- 
vention will  approve  and  endorse  the  section  now  under  consideration."1 

Mr.  Minor  of  Titusville  declared  the  proposed  provision  unnecessary, 
since  by  prohibiting  special  acts  for  cities,  the  evil  of  legislative  inter- 
ference had  been  removed.  Further,  he  believed  that  councils  could  not  be 
safely  trusted  with  such  large  powers  of  local  autonomy.  "It  is  wrong 
for  us  for  all  time  to  *  *  *  say  that  there  shall  be  vested  in  the  coun- 
cils exclusive,  paramount  power,  perhaps  even  beyond  the  courts  them- 
selves. Councils,  knowing  that  they  have  the  power,  will  use  it.  Power 
possessed  draws  to  itself  power.  There  is  always  an  inducement  to  abuse 
when  you   cannot  appeal   to  any   other  authority  to  check  it."2 

Mr.  Biddle,  the  only  Philadelphia  delegate  who  opposed  the  provision, 
said:  "I  agree  with  the  gentleman  from  Crawford  (Mr.  Minor)  *  *  * 
that  there  might  be  a  great  many  things  under  the  generality  of  this 
language  attempted  by  the  municipal  governments  which  would  be  wrong  to 
the  last  degree."3 

The  debate  closed  with  the  speech  of  Mr.  De  France  opposing  the  pro- 
vision. "If  you  make  the  power  exclusive,  the  Legislature  could  not  annul 
any  act  of  the  city  council  *  *  *  because  the  cities  would  have  the  ex- 
clusive power  of  governing  themselves  just  as  much  as  the  State  of 
Pennsylvania   has   the   power   of  governing  herself. 

"Although  I  want  the  cities  to  have  some  power  in  the  first  place,  I 
believe  the  city  councils  would  perhaps  commit  as  great  outrages  as  the 
Legislature  and  perhaps  more  if  they  had  the  exclusive  power  of  deter- 
mining how  they  should  be  governed."4 

The  amendment  to  the  provision,  as  well  as  the  committee's  original 
recommendation,  was  rejected  by  the  convention,  and  thus  ended  the 
attempt  to  delimit,  by  constitutional  provision,  a  sphere  of  local  autonomy. 
Subsequent  events  have  proven  that  those  who  opposed  this  section  were 
mistaken  in  thinking  that  by  reason  of  Article  III,  Section  7,  legislative  inter- 
ference in  the  affairs  of  a  particular  city  would  be  thenceforth  impossible. 

1.  Debates,  VI,  230. 

2.  Debates,  VI,  231. 

3.  Debates,  VI,  231. 

4.  Debates,  VI,  231. 

48 


Whether  they  .were  right  in  their  other  argument  that  such  large  powers 
over  local  affairs  could  not  be  safely  entrusted  to  councils  has  never,  in 
Pennsylvania  been  put  to  the  test  of  experience.1 

IL— LEGISLATIVE   CLASSIFICATION    OF 
MUNICIPALITIES. 

The  first  legislature  meeting  under  the  new  constitution  proceeded  up- 
on the  theory  that  it  had  power  to  classify  the  cities  of  the  state,  and 
that  a  law  applying  to  all  the  members  of  a  class  (even  though  such  class 
included  but  one  city)  was  not  a  special,  but  a  general  law,2  and  hence  not 
in  violation  of  Article  III,  Section  7.  Accordingly  the  Act  of  May  23,  1874, 
was  passed,3  dividing  the  cities  of  the  state  into  three  classes.  (1)  Those 
containing  a  population  of  over  300,000;  (2)  those  with  a  population  over 
100,000  and  less  than  300,000;  (3)  those  with  a  population  exceeding  10,000 
and  less  than  100,000.  The  act  then  specifies,  at  considerable  length,  the 
powers    and   organization    of   the    municipal   government   of   each   class. 

This  act  was  upheld  by  the  Supreme  Court  of  the  state  in  the  leading 
case  of  Wheeler  v.  Philadelphia*.  The  decision  in  this  case  was  based  upon 
three   propositions,   as    follows : 

(1.)  The  power  of  classification  existed  at  the  time  of  the  adoption  of 
the  constitution.  It  had  been  exercised  by  the  legislature  from  the  founda- 
tion of  the  government,  and  its  continued  exercise  is  necessary  to  the  pub- 
lic welfare.  Hence  "the  true  question  is,  not  whether  classification  is 
authorized  by  the  terms  of  the  constitution,  but  whether  it  is  expressly  pro- 
hibited." The  constitution  nowhere  contains  any  such  prohibition,  but  on  the 
contrary,  the  power  of  classification  for  certain  purposes  is  expressly  recog- 
nized. 

(2.)  The  Act  of  1874  contemplates  that  other  cities  by  increase  of  popu- 
lation will  enter  the  higher  classes,  and  therefore  it  is  not  local  or  special. 

(3.)  If  classification  be  not  allowed,  either  the  large  cities  would  lose 
needed  legislation,  or  the  small  ones  be  overburdened  by  that  adopted.5 

The  classification  of  cities  established  by  the  Act  of  1874  continued  in 
force  for  two  years,  or  until  the  passage  of  the  Act  of  April  nth,  1876,6 
dividing  the  cities  of  the  state  into  five  classes  as  follows: 

Class.  Population. 

1 300,000  or  more 

II 100,000  —  300,000 

HI 30,000  —  100,000 

IV 12,000  —   30,000 

V Less  than  12,000 

1.  For  the  states  which  have  adopted  constitutional  provisions  permitting  cities  to 
frame  their  own  charters,  see  supra,  p.   16. 

2.  The    generally   accepted    doctrine   of    classification;   see   supra,   p.    36. 

3.  Pa.  Laws,  230. 

4.  77   Pa.   St.   338. 

5.  For  a  further  discussion  of  this  case  see  infra,  p.  54. 

6.  Pa.    Laws,   20. 

49 


The  classification  established  by  this  act  continued  in  force  for  eleven 
years,  or  until  the  act  of  May  24th,  1887,1  classifying  the  cities  of  the  state 
as  follows : 

Class.  Population. 

I 600,000  or  more 

II 150,000  —  600,000 

III 75,000—150,000 

IV 45,000  —  75,000 

V 20,000  —  45,000 

VI 10,000  —  20,000 

VII All  cities  having  less  than  10,000 

Both  of  the  acts  last  named,  that  of  April  nth,  1876,  and  of  May  24, 
1887,  were  declared  unconstitutional  by  the  Supreme  Court  in  Ayars'  Ap- 
peal,8 as  violating  Section  7  of  Article  III  of  the  Constitution.3 

The  above  decision,  rendered  in  1888,  necessitated  a  new  classification 
act  (the  fourth  since  the  adoption  of  the  constitution),  and  this  was  accord- 
ingly passed  May  8,  1880.4  This  act  divided  the  cities  of  Pennsylvania  into 
three  classes,  as  follows: 

Class.  Population. 

1 600,000  or  more 

II 100,000 — 600,000 

III Less  than  100,000 

The  act  further  provided  that  the  population  of  a  city  should  be  de- 
termined in  accordance  with  the  last  Federal  census,  and  made  it  the  duty 
of  the  governor  to  certify  when  a  city  should  be  entitled  to  advance,  such 
advance  then  being  obligatory  upon  the  city.5  This  act  was  sustained  by 
the  Supreme  Court  in  the  case  of  Harris'  Appeal.8 


Ill— DECISIONS  OF  THE  SUPREME  COURT. 
This  Provision  to  be  So  Construed  as  to  Prevent  the  Mischief  it  Was 
Designed  to   Remedy. 

In  interpreting  the  seventh  section  of  Article  III,  the  court  has  con- 
sidered the  causes  which  led  to  its  adoption,  and  has  then  aimed  to  give 
it  such  liberal  construction  as  would  prevent  the  mischief  which  it  was 
designed  to  remedy.  Thus  in  Ayars'  Appeal,7  Sterrett,  J.,  said :  "During  the 
session  of  the  Legislature  immediately  preceding  the  adoption  of  the  present 
constitution,  nearly  one  hundred  and  fifty  local  or  special  laws  were  enacted 
for  the  city  of  Philadelphia,  more  than  one  third  that  number  for  the  city 
of  Pittsburg,  and  for  other  municipal  divisions  of  the  state,  about  the  same 
proportion.    This  was  by  no  means  exceptional.    The  pernicious  system  of 

1.  Pa.    Laws,   204. 

2.  12>2   Pa.   St.   2m. 

3.  Discussion  of  this  case,  infra,  p.  56. 

4.  Pa.   Laws,   133. 

5.  Contrary  to  the  rule  in  Ohio,  where  advancement  was  optional  with  the  city. 
Supra,  p.   39. 

6.  160  Pa.   St.   494. 

7.  122  Pa.   St.  266. 


50 


special  legislation,  practiced  for  many  years  before,  had  become  so  general 
and  deep-rooted,  and  the  evils  resulting  therefrom  so  alarming,  that  the 
people  of  the  Commonwealth  determined  to  apply  the  only  remedy  that 
promise  any  hope  of  relief.  Doubtless,  it  was  a  proper  appreciation  of  the 
magnitude  of  these  evils  as  much  as  anything  else  that  called  into  exist- 
ence the  convention  that  framed  the  present  constitution,  and  induced  its 
adoption  by  an  overwhelming  vote.  One  of  the  manifest  objects  of  that  in- 
strument was  to  eradicate  that  species  of  legislation,  and  substitute,  in  lieu 
of  it,  general  laws  whenever  it  was  possible  to  do  so.  This  is  so  clearly 
apparent  that  no  unbiased  mind  can  contemplate  the  seventh  section  of 
Article  III,  and  kindred  provisions,  without  reaching  that  conclusion.  That 
section  contains  a  schedule  of  nearly  fifty  prolific  subjects  of  previous 
special  and  local  legislation,  and  ordains,  'The  General  Assembly  shall  not 
pass  any  local  or  special  law/  relating  to  either  of  them.  As  an  additional 
safeguard  in  cases  where  special  legislation  is  not  expressly  prohibited,  the 
next  section  declares,  'No  local  or  special  bill  shall  be  passed  unless  notice 
of  the  intention  to  apply  therefor  shall  have  been  published/  etc.    *    *    * 

"The  purpose  of  the  provision  under  consideration  was  not  to  limit 
legislation,  but  merely  to  prohibit  doing,  by  local  or  special  laws,  that  which 
can  be  accomplished  by  general  laws.  It  relates  not  to  the  substance,  but 
to  the  method  of  legislation,  and  imperatively  demands  the  enactment  of 
general  instead  of  local  or  special  laws,  whenever  the  former  are  at  all 
practicable."1 

In  harmony  with  the  foregoing  is  the  broad  construction  which  the  court 
has  placed  upon  the  word  "affairs"  as  used  in  section  seven.  Thus  in  Mor- 
rison v.  Bachert,2  Paxson,  J.,  said:  "It  was  held  by  the  learned  judge  of  the 
court  below,  however,  that  an  Act  regulating  the  fees  of  the  prothonotary 
or  other  county  officers  was  not  a'  law  'regulating  the  affairs  of  counties/ 
and  he  defines  the  'affairs  of  counties'  to  be  such  'as  concern  counties  in 
their  governmental  and  corporate  capacity.'  This  will  not  do.  It  is 
too  narrow  a  construction  of  the  constitution.  That  instrument 
was  intended  for  the  benefit  of  the  people,  and  must  receive  a  liberal 
construction.  'A  constitution  is  not  to  receive  a  technical  construc- 
tion, like  a  common-law  instrument  or  statute.  It  is  to  be  interpreted  so  as 
to  carry  out  the  great  principles  of  government,  and  not  to  defeat  them:' 
Commonwealth  v.  Clark;  7  W.  and  S.,  127.  When  it  speaks  of  the  affairs 
of  a  county,  it  means  such  affairs  as  affect  the  people  of  that  county."* 

Limitations  Upon  Local  and  Special  Legislation  Apply  Only  to  General 

Assembly. 

It  should  be  noted  that  the  constitutional  restrictions  upon  local  and 
special  legislation  govern  the  General  Assembly  only,  and  do  not  constitute 
limitations  upon  the  legislative  power  of  a  municipality.  A  municipal  ordin- 
ance is  not  a  law  within  the  meaning  of  the  constitutional  limitation  upon 

1.  See  also  Morrison  v.  Bachert,  112  Pa.  St.  322;  Scranton  School  District's  Ap- 
peal,  113   Pa.    St.    176;    City  of  Scranton  v.   Silkman,    113   Pa.    St.    191. 

2.  112   Pa.    St.   322. 

3.  See   also  Montgomery  v.  Commonwealth,  91  Pa.    St.   125. 

51 


the  passing  of  local  and  special  laws.  In  Klingler  v.  Beckel,1  the  question 
was  as  to  the  validity  of  a  borough  ordinance  prohibiting  the  erection  of 
wooden  buildings  within  certain  prescribed  limits,  enacted  under  the  pro- 
visions of  the  Act  of  June  3,  1885.*  The  court  below  held  that  the  ordin- 
ance was  invalid  because  it  prohibited  the  erection  of  such  buildings  in  only 
a  portion  of  the  borough,  and  asserted  that  under  the  provision  of  the  con- 
stitution prohibiting  special  or  local  legislation,  it  was  beyond  the  power 
of  the  council  as  it  was  beyond  the  power  of  the  Legislature  to  legislate  for 
only  a  portion  of  the  borough.  This  decision  was  reversed  by  the  Supreme 
Court,  and  Paxson,  J.,  declared:  "It  by  no  means  follows  that  when  the 
Legislature  by  a  general  law  confers  upon  a  borough  the  power  of  regulating 
its  local  affairs,  it  may  not  do  so  by  ordinances  that  are  special  in  their 
character.  The  object  of  the  constitutional  provision  was  clearly  to  prevent 
the  Legislature  from  interfering  in  local  affairs  by  means  of  special  legis- 
lation, and,  if  the  town  councils  of  cities  and  boroughs  cannot  regulate  them, 
they  are  in  a  bad  way  indeed.  The  principle  contended  for  would  prevent  the 
town  councils  of  a  city  or  borough  from  passing  an  ordinance  to  pave  one 
street,  unless  it  also  provided  for  the  paving  of  all  the  other  streets  within  the 
limits  of  the  municipality.  In  Baldwin  v.  The  City  of  Philadelphia,  99  Pa. 
[64,  it  was  decided  than  an  ordinance  of  the  city  was  not  a  'law* 
within  the  meaning  of  that  clause  of  the  constitution  which  declares  that 
'no  law  shall  extend  the  term  of  any  public  officer,  or  increase  or  diminish 
his  salary  or  emoluments  after  his  election  or  appointment.'  The  reasoning 
of  that  case  applies  equally  to  that  section  of  the  constitution  prohibiting 
special  legislation."* 

This  Provision  is  Prospective. 

This  clause  of  Section  7,  Article  III,  the  Supreme  Court  has  declared 
to  be  prospective  in  its  operation;  and  hence  it  does  not  repeal  local  or 
special  acts  passed  before  the  constitution  went  into  operation.4  Nor  is 
an  act.  otherwise  constitutional,  rendered  invalid  by  a  provision  that  it  shall 
not  affect  prior  local   or  special  ad 

What  is  a  Special  or  Local  Law? 

From  the  doctrines  laid  down  by  the  court,  a  general  law  may  be  de- 
fined as  one  which  applies  to,  and  operates  uniformly  upon,  all  members  of 
any  class  of  persons,  places  or  things.  A  special  law,  on  the  other  hand, 
is  one  applicable  to  less  than  a  class  of  subjects;  that  is,  it  relates  to  particular 
persons,  places  or  things.8  A  local  law  is  one  that  applies  to  less  than  a 
class  of  places:  that  is,  it  is  a  special  law  of  local  application.7    Thus  laws 

1.  117  Pa.    St.   826. 

2.  Pa.   L.  55. 

3.  See    also   Norristown    V,    Citizens'    Passenger   Railway   Company,    148    Pa.    St. 
McCormiek  Countv.   150   Pa.    St.    191. 

4.  Harrison    V.    Couitriffht,    4    Luz.    L.   'Roc.    W7;    Countv    Of    Allegheny    V,    Gib- 
Son   ami    COy    M   Pa.    St.   397;    Countv   of   Crawford  r.   Nash,   99   Pa.    St.   253;   Comm.   P. 
Ralph.   Ill    Pa.    St.    865.  „,    , 

;..      Brail    V.    Philippi.  117  Pa.   St.   226;    Comm.   V,    Sellers.    ISO  Ta.    St.   32;   Chelten- 
ham Twp.  Road,  140  Pa.   St.  136;   Lackawanna  Twp.  Harris'  Appeal,  160  Pa  St.   494. 
This  distinction  is  clearly  made  in  Wheeler  r.  Philadelphia,  77  Pa.   St.  388. 
The    principle   of   classification    as    affecting  the  character   of    a   law    is    discussed 
on  p.   49  ct  seq. 

52 


changing  the  name  of  a  certain  person,  or  granting  a  divorce,  or  creating  a 
particular  corporation,  are  instances  of  special  laws;  while  acts  regulating 
the  affairs  of  Pittsburg,  or  changing  the  location  of  the  county  seat,  are 
instances  of  local  laws,   (i.  e.,  special  laws  of  local  application). 

This  distinction  between  'general  acts  on  the  one  hand,  and  special  and 
local  acts  on  the  other,  is  clearly  set  forth  in  many  cases,  and  is  well 
stated  by  Williams,  J.,  in  Weinman  v.  Passenger  Railway  Company:1  "The 
subject  of  this  statute  is,  therefore,  street  railway  companies,  which  is  a  sub- 
ject for  general  legislation,  while  the  statute  professes  to  deal  only  with 
a  limited  number  of  these  railways,  and  these  are  selected  by  reference  to 
their  location  in  certain  cities.  Under  the  guise  of  a  general  law,  we  have 
here  one  which  is  special,  because  it  relates  to  a  few  members  of  the  general 
class  of  corporations  known  as  street  railway  companies,  and  local  because 
its  operations  are  confined  to  particular  localities,  viz.,  cities  of  the  second 
and  third  class. 

What  Is  a  Proper  Classification  Ultimately  a  Judicial  Question. 

While  the  subject  of  classification  is  legislative  in  the  first  instance, 
and  the  presumption  is  that  the  legislative  classification  is  valid  and  based 
upon  sufficient  and  proper  grounds,  yet  the  ultimate  decision  as  to  the  con- 
situtionality  thereof  is  for  the  court.2  This  principle  is  clearly  stated  by  Sterrett, 
J.,  in  Ayars'  Appeal,8  as  follows :  "It  has  also  been  suggested  that  the  ques- 
tion of  necessity  for  classification  and  the  extent  thereof,  as  well  as  of  what 
are  local  or  special  Laws,  is  a  legislative  and  not  a  judicial  question.  The 
answer  to  that  is  obvious.  The  people,  in  their  wisdom,  have  seen  fit  not 
only  to  prescribe  the  form  of  enacting  laws,  but  also  as  to  certain  subjects, 
the  method  of  legislation,  by  ordaining  that  no  local  or  special  law  relating 
to  those  subjects  shall  be  passed.  Whether  in  any  given  case,  the  Legislature 
has  transcended  its  power  and  passed  a  law  in  conflict  with  that  limitation 
is  essentially  a  question  of  law,  and  must  necessarily  be  decided  by  the  courts. 
To  warrant  the  conclusion  that  the  people,  in  ordaining  such  limitations,  in- 
tended to  invest  their  law  makers  with  judicial  power,  and  thus  make  them 
final  arbitrators  of  the  validity  of  their  own  act,  would  require  the  clearest 
and  most  emphatic  language  to  that  effect.  No  such  intention  is  expressed 
in  the  constitution,  and  none  can  be  inferred  from  any  of  its  provisions. 
That  these  limitations  were  designed  to  establish  a  fixed  and  permanent 
rule  cannot  be  doubted;  but,  if  the  ultimate  application  of  that  rule  were  to 
rest  solely  in  the  judgment  of  the  body  on  which  it  was  intended  to  operate, 
nothing  could  be  more  flexible." 

Proper  Basis  for  Classification. 

According  to  the  doctrine  laid  down  by  the  court  in  Commonwealth  v. 
Patton,4  population  is  the  only  proper  basis  for  the  classification  of  cities 
or  counties.  "The  moment  we  resort  to  geographical  distinctions  we  enter 
the    domain   of   special   legislation,    for   the    reason   that   such   classification 

1.  118  Pa.  St.  192. 

2.  Same  rule  obtains  in  Ohio;  supra,  p.  31. 

3.  122  Pa.  St.  266. 

4.  88    Pa.    St.   258. 

S3 


operates   upon   certain   cities   or   counties   to  the  perpetual   exclusion   of  all 
others." 

It  will  be  noted  that  the  language  of  this  decision,  especially  the  declara- 
tion that  "there  can  be  no  proper  classification  of  cities  or  counties  except  by 
population"  is  broader  than  the  particular  point  decided  in  this  case,  which 
is,  that  geographical  location  is  not  a  proper  basis  for  classification.1 
Whether  there  may  be  other  proper  basis  for  classification  besides  popula- 
tion,2 is  not  settled  by  the  decision  in  this  case,  the  language  used  by  the 
learned  court  to  the  contrary  notwithstanding. 

Classification  May  be  Valid  Though   Only  One  City  be  Included  in  a 

Given  Class. 

The  Pennsylvania  court  agrees  with  the  Supreme  Court  of  Ohio  in  hold- 
ing that  a  classification  of  cities,  otherwise  proper,  is  not  rendered  invalid 
by  reason  of  the  fact  that  but  one  city  is  included  in  a  given  class.8  This 
principle  was  clearly  stated  in  the  leading  case  of  Wheeler  v.  Philadelphia,4 
which  involved  the  validity  of  the  Act  of  May  23,  1874.  This  act  divided 
the  cities  of  the  state  into  three  classes,  Philadelphia  being  the  only 
city  included  in  the  first  class.  In  rendering  this  decision,  Paxson, 
J.,  said:  "But  it  is  contended,  that  even  if  the  right  to  classify  exists,  the 
exercise  of  it  by  the  Legislature,  in  this  instance,  is  in  violation  of  the  con- 
stitution, for  the  reason  that  there  is  but  one  city  in  the  state  with  a  popula- 
tion exceeding  300,000;  that  to  form  a  class  containing  but  one  city  is 
in  point  of  fact  legislating  for  that  one  city,  to  the  exclusion  of  all  others, 
and  constitutes  the  local  and  special  legislation  prohibited  by  the  constitution. 
This  argument  is  plausible  but  unsound.    *    *    * 

"Legislation  is  not  only  intended  to  meet  the  wants  of  the  present,  but 
to  provide  for  the  future.  It  deals  not  with  the  past,  but  in  theory  at 
least,  anticipates  the  needs  of  a  state,  healthy  with  a  vigorous  development. 
It  is  intended  to  be  permanent.  At  no  distant  day  Pittsburg  will  probably 
become  a  city  of  the  first  class;  and  Scranton,  or  others  of  the  rapidly 
growing  interior  towns,  will  take  the  place  of  the  city  of  Pittsburg  as  a  city 
of  the  second  class.  In  the  meantime,  is  the  classification  as  to  cities  of  the 
first  class  bad  because  Philadelphia  is  the  only  one  of  the  class?  We  think 
not.  Classification  does  not  depend  upon  numbers.  The  first  man,  Adam, 
was  as  distinctly  a  class  when  the  breath  of  life  was  breathed  into  him 
as  at  any  subsequent  period.  The  word  is  used  not  to  designate  numbers, 
but  a  rank  or  order  of  persons  or  things;  in  society  it  is  used  to  indicate 
equality,  or  persons  distinguished  by  common  characteristics,  as  the  trad- 
ing classes;  the  laboring  classes;  in  science  it  is  a  division  or  arrangement, 
containing  the  subordinate  divisions  of  order,  genius  and  species."8 

1.  Contra,   The   State  v.  Hammer,   42   N.   J.   L.   485. 

2.  In   Ohio    other  bases   than   population   have  been  held  valid;    supra,  p.   37. 

3.  'The  State  v.  Pugh,  43  Ohio  St.   98;  supra,  p.   39 

4.  77  Pa.  St.  338;  followed  in  Kilgore  v.  Magee,  85  Pa.  St.  401;  Nason  v.  Erie 
County  Poor  Directors,  126  Pa.   St.  445;  Whitney  v.  Pittsburg,  138  Pa.   St.   427. 

5.  For  a  further   account  of  this  case,    see  supra,  p.    49. 

54 


Classification  Must  Not  be  Pretended,  False  Nor  Evasive. 

The  classification  of  cities  upon  which  an  act  is  based  must  be  a  real 
classification,  not  a  pretended  or  evasive  one.  A  good  example  of  sham 
classification  is  afforded  by  the  Act  of  April  18,  1878  (P.  L.,  29),  entitled 
"An  act  to  provide  for  the  holding  of  courts  in  certain  cities  of  this  Common- 
wealth." By  this  act  it  was  enacted  "that  in  all  counties  of  this  Common- 
wealth where  there  is  a  population  of  more  than  60,000  inhabitants,  and  in 
which  there  shall  be  any  city  incorporated  at  the  time  of  the  passage  of  this 
Act  with  a  population  exceeding  8,000  inhabitants,  situate  at  a  distance 
from  the  county-seat  of  more  than  twenty-seven  miles  by  the  usually  traveled 
public  road,  it  shall  be  the  duty  of  the  president  judge  *  *  *  to  make 
an  order  providing  for  the  holding  of  one  week  of  court  or  more  *  *  * 
for  the  trial  of  criminal  or  civil  cases  in  the  said  city." 

The  court  held  this  act  invalid  as  a  local  law  under  a  false  and  pretend- 
ed classification,  and  Paxson,  J.,  after  quoting  the  above,  said:  "This  is 
classification  run  mad.  Why  not  say  all  counties  named  Crawford,  with  a 
population  exceeding  6o,ooo,  that  contain  a  city  called  Titusville,  with  a 
population  of  over  8,000,  and  situate  twenty-seven  miles  from  the  county 
seat?  Or  all  counties  with  a  population  over  60,000,  watered  by  a  certain 
river,  or  bounded  by  a  certain  mountain?"1 

This  act  in  modified  form  was  again  passed  by  the  Assembly  on  June 
12,  1879,2  but  was  again  held  unconstitutional  by  the  court  as  being  a  mere 
evasion  of  the  constitution.8 

The  Act  of  June  8,  1891,4  entitled  "An  Act  to  prevent  the  pollution  of 
the  water  of  streams  supplying  cities  of  this  Commonwealth,"  declared  it  to 
be  unlawful  "hereafter  to  establish  any  cemetery  upon  lands  located  within 
one  mile  from  any  city  of  this  Commonwealth,  the  drainage  from  which 
empties  or  passes  into  any  stream  from  which  the  supply  of  water  is  obtain- 
ed." This  act  the  court  held  to  be  invalid,  and  Williams,  J.,  said:  "If 
*  *  *  we  look  into  its  provisions  we  shall  find  that  they  do  not  relate 
to  cities  of  the  first  class  or  any  other  class.  They  relate  distinctly  and 
clearly  to  a  strip  of  territory  lying  on  the  outside  of  the  city  of  Philadelphia, 
having  a  breadth  of  one  mile,  and  a  drainage  into  any  stream  from  which 
the  water  supply  of  the  city  is  obtained.  No  municipal  power,  or  duty,  or 
officer  is  the  subject  of  legislative  regulation  by  this  act,  but  it  lays  its 
hand  on  cemeteries  and  forbids  their  establishment  within  this  narrow  strip 
of  territory.  *  *  *  This  act  does  not  undertake  to  deal  with  cemeteries 
within  cities  of  the  first  class,  but  with  those  that  are  wholly  outside  of 
them.  It  does  not  attempt  to  deal  with  all  cemeteries  that  are  outside,  but 
only  with  those  that  are  within  one  mile  from  the  city  lines.  *  *  *  It 
would  be  difficult  to  imagine  a  better  example  of  a  law  both  local  and 
special  than  this."5 

The   Act   of  June  8,    1893,6   authorizing   the    "taking   of   certain   public 

1.  Commonwealth  v.  Patton,   88   Pa.   St.   258. 

2.  P.  L.  174. 

3.  Scowden's  Appeal,   96   Pa.    St.    422. 

4.  P.  L,.  216. 

5.  Philadelphia    v.    Westminster    Cemetery    Co.,    162    Pa.    St.    105. 

6.  P.   L.  42. 

55 


burial  places,  under  certain  circumstances,  for  places  of  common  school 
education,"  was  also  adjudged  invalid  by  the  Supreme  Court.  In  this  case 
the  court  said:  "It  is  well  known  that  this  Act  of  Assembly  was  prepared 
and  its  passage  procured  for  this  particular  case,  to  enable  this  school  board 
to  take  this  burial  ground,  and  that  this  was  done  after  a  special  law 
avowedly  for  the  same  purpose  had  been  vetoed  by  the  Governor.  It  is 
special  legislation  in  the  guise  of  a  general  law— the  most  specious  and  vic- 
ious form  that  special  legislation  can  assume."1 

An  act  is  local,  notwithstanding  its  general  form,  provided  it  relates 
only  to  a  particular  building  in  a  certain  city.  Thus,  the  Act  of  May  24, 
1893,  entitled  "An  act  to  abolish  commissioners  of  public  buildings,  and  to 
place  all  public  buildings  heretofore  under  the  control  of  such  commissioners, 
under  the  control  of  the  department  of  public  works  in  cities  of  the  first 
class,"  is  a  local  act.  It  applies  solely  to  Philadelphia,  and  to  but  one 
particular  building  in  that  city,  and  regulates  the  affairs  of  that  city  by 
placing  a  particular  building  in  the  control  of  the  department  of  public 
works.2 

Classification  Must  Not  be  Unnecessary  Nor  Excessive. 

Classification  was  originally  sustained  on  the  ground  of  necessity,3  and 
is  limited  thereby:  hence  if  the  legislative  classification  appears  to  the  court 
to  be  unnecessary  or  excessive,  the  classification  will  be  declared  invalid. 
The  application  of  this  principle  marks  the  parting  of  the  ways  between  the 
Ohio  and  the  Pennsylvania  courts.  Both  courts  originally  sustained  the 
classification  of  cities  on  the  ground  of  necessity,  and  declared  the  court  to 
be  the  final  judge  as  to  the  existence  of  such  necessity;  but  while  the  Ohio 
court  allowed  the  legislature  large  discretion  in  the  creation  of  additional 
classes  (permitting  the  two  original  classes  to  be  increased  to  eleven),  the 
Pennsylvania  court  has  refused  to  allow  the  original  three-class  plan  to  be 
extended. 

The  leading  case  in  Pennsylvania  on  this  point  is  Ayar's  Appeal.*  In 
this  case,  the  Act  of  May  24,  1887,8  dividing  the  cities  of  the  state  into  seven 
classes,6  and  providing  for  the  incorporation  and  government  of  cities  of 
the  fourth,  fifth,  sixth,  and  seventh  classes,  was  held  invalid  as  being  an  un- 
necessary and  excessive  classification.  For  the  same  reason  this  decision 
also  declared  unconstitutional  the  Act  of  April  11,  1876/  (amending  the 
original  Act  of  May  23,  18748),  and  increasing  the  number  of  classes  of  cities 

to  five.9 

In  this  case  the  court  reviewed  the  decision  in  the  case  of  Wheeler  v. 

Philadelphia10  and  Kilgore  v.  Magee,11  and  pointed  out  that  in  these  cases  the 

1.  City  of   York  School   District's  Appeal,   169    Pa.   St.   70. 

2.  Perkins  v.   Philadelphia,   156   Pa.    St.   554. 

3.  Wheeler  v.   Philadelphia,  77  Pa.    St.   338. 

4.  122  Pa.  St.  266;  followed  in  Shoemaker  V.  Harrisburg,  122  Pa.  St.  285;  Berg- 
haus,  v.  Harrisburg,  122  Pa.  St.  289;  Comm.  v.  Smoulter,  126  Pa.  St.  137;  Coram,  v. 
Miller,  126   Pa.    St.   137;   Meadville  v.   Dickson,   129   Pa.    St.   1. 

5.  P.  L.   204. 

6.  See  supra,  p.  50. 

7.  P.    Iy.   20. 

8.  P.  L.  230;  supra,  p.  49. 

9.  See  supra,  p.  49. 

10.  77   Pa.  St.  338. 

11.  85   Pa.  St.  401. 

56 


original  classification  act  dividing  cities  into  three  classes  had  been  sus- 
tained on  the  ground  of  necessity  and  was  limited  thereby.  Continuing, 
Sterrett,  J.,  said:  "Subsequent  legislation  clearly  indicates  that  the  scope 
of  the  decision  in  Wheeler  v.  Philadelphia  was  either  misunderstood  or 
ignored.  It  was  never  intended  to  license  indiscriminate  classification  as  a 
mere  pretext  for  the  enactment  of  laws  essentially  local  or  special.  Re- 
peated and  pointed  admonitions  of  that  fact  were  given  in  subsequent  cases 
involving  the  general  subject.     *    *    * 

"The  underlying  principle  of  all  the  cases  is  that  classification,  with 
the  view  of  legislating  for  either  class  separately,  is  essentially  unconstitu- 
tional, unless  a  necessity  therefor  exists, — a  necessity  springing  from  mani- 
fest peculiarities,  clearly  distinguishing  those  of  one  class  from  each  of  the 
other  classes,  and  imperatively  demanding  legislation  for  each  class,  separ- 
ately, that  would  be  useless  and  detrimental  to  the  others.  Laws  enacted  in 
pursuance  of  such  classification  and  for  such  purposes,  are,  properly  speak- 
ing, neither  local  nor  special.  They  are  general  laws,  because  they  apply 
alike  to  all  that  are  similarly  situated  as  to  their  peculiar  necessities.  All 
legislation  is  necessarily  based  on  a  classification  of  its  subjects,  and  when 
such  classification  is  fairly  made,  laws  enacted  in  conformity  thereto  cannot 
be  properly  characterized  as  either  local  or  special. 

"The  Act  of  1874  dividing  the  cities  of  the  state  into  three  classes 
*  *  *  was  sustained  as  to  such  of  its  principles  as  have  been  involved  in 
adjudicated  cases,  because  it  was  considered  within  the  spirit  if  not  the  letter 
of  the  constitution.  As  to  the  number  of  classes  created,  that  act  appears 
to  have  covered  the  entire  ground  of  classification.  It  provided  for  all  ex- 
isting as  well  as  every  conceivable  prospective  necessity.  It  is  impossible  to 
suggest  any  legislation  that  has  or  may  hereafter  become  necessary  for  any 
member  of  either  class,  that  cannot,  without  detriment  to  other  members 
of  the  same  class,  be  made  applicable  to  all  of  them.  If  classification  had 
stopped  where  the  Act  of  1874  left  it,  it  would  have  been  well,  but  it  did 
not.  Without  the  slightest  foundation  in  necessity,  the  number  of  classes 
was  soon  increased  to  five,  and  afterward  to  seven,  and  if  the  vicious  prin- 
ciple on  which  that  was  done  be  recognized  by  the  courts,  the  number  may 
at  any  time  be  further  increased  until  it  equals  the  number  of  cities  in  the 
Commonwealth.  The  only  possible  purpose  of  such  classification  is  evasion 
of  the  constitutional  limitations,  and  as  such  it  ought  to  be  unhesitatingly 
condemned." 

Classification  Must  Not  Work  Exclusion. 

A  valid  classification  act  must  not  be  so  framed  as  to  exclude  from  its 
provisions  certain  cities  or  counties,  but  it  must  be  operative  from  time  to 
time  so  that  it  may  be  possible  for  other  cities  or  counties,  by  increase  of 
population,  to  come  within  its  operation.1  It  is  for  this  reason  that  the 
courts,  by  the  great  weight  of  authority,  have  declared  a  classification  based 
upon  geographical  conditions  to  be  improper ;  for  geographical  conditions  be- 
ing permanent,  an  act  which  is  special  in  character  at  the  beginning  of  its 

1.     The    State  v.   Pugh,   43   Ohio   St.   98;   Topeka  v.   Gillette,   32   Kansas,   431. 

57 


application,  must  always  remain  so.1  For  the  same  reason  an  act  containing: 
a  proviso  that  it  shall  not  apply  to  counties  having  over  200,000  inhabitants 
is  local,  because  by  this  proviso  -certain  counties  are  permanently  excluded 
from  the  operation  of  the  act.  In  this  case,2  Mercer,  J.,  said:  "Within 
reasonable  limits  and  for  some  purposes  classification  is  allowable.  It  has 
been  sustained  on  the  basis  of  population  of  counties  on  the  assumption  that 
those  having  a  small  population  may  ultimately  have  one  much  larger. 
Here  the  larger  are  excluded.  We  cannot  assume  that  their  population  will 
ever  be  reduced  to  less  than  the  number  named.  They  are,  therefore,  practi- 
cally and  permanently  excluded  by  the  intent  and  purpose  of  this  act,  which 
is  special  in  its  terms  and  local  in  its  effect.3 

Legislation  for  Cities  by  Classes  Must  be  Confined  to  Municipal  Matters 

Proper. 

As  already  pointed  out,*  the  three-class  division  of  the  cities  of  the 
state  is  constitutional,  and  a  law  relating  to  all  the  members  of  a  class  is 
general  and  not  special;  but,  to  be  valid,  such  a  law  must  pertain  to  a 
municipal  matter.  Classification  having  been  upheld  on  the  ground  of  ne- 
cessity and  in  order  to  permit  legislation  to  be  adapted  to  the  diverse  muni- 
cipal needs  of  the  cities  of  the  state,  it  naturally  follows  that  all  legislation 
based  upon  such  classification  must  be  within  the  purposes  of  the  classifica- 
tion: that  is,  it  must  relate  to  municipal  affairs.  "Classification  of  cities 
and  laws  confined  thereto  are  permissible  only  in  matters  relating  to  their 
municipal  government,  but  the  rights  of  persons  and  property  must  be  secured 
by  general  laws,  which  must  be  uniform  and  in  force  everywhere  through- 
out the  State."5 

The  first  decision  based  upon  this  distinction  was  that  of  Weinman  v. 
Passenger  Railway  Company,8  involving  the  Act  of  March  19,  1879,7  which 
provided  for  the  incorporation  and  government  of  street  railway  companies 
in  cities  of  the  second  and  third  classes.  This  act  was  held  invalid  as  being 
both  local  and  special.  In  rendering  the  opinion,  Williams,  J.,  said:  "It 
is  urged  that  this  statute  is  sustainable  under  the  decision  of  this  court 
recognizing  the  power  of  the  Legislature  to  classify  the  cities  of  the  Com- 
monwealth for  purposes  of  municipal  government,  but  those  cases  rest  upon 
a  very  different  principle  from  that  involved  in  the  present  case.  *  *  * 
It  has  been  found  desirable  to  divide  cities  into  classes  upon  the  basis  of 
their  population.  *  *  *  Each  of  these  classes  requires  legislation  peculiar 
to  itself,  but  such  legislation  must  be  applicable  to  all  members  of  the  class 
to  which  it  relates,  and  must  be  directed  to  the  existence  and  regulation  of 

1.  Commonwealth  v.    Patton,   88  Pa.    St.   258;  supra,  p.   53. 

2.  Davis   V.   Clark,   106    Pa.   St.   377. 

3.  Same  principle  laid  down  in  Monroe  v.  Luzerne  County,  103  Pa.  St.  278;  Lu- 
zerne County  v.  Glennon,  109  Pa.  St.  564;  McCarty  v.  Commonwwealth,  110  Pa.  St. 
243;  Morrison  v.  Bachert,  112  Pa.  St.  322;  City  of  Scranton  v.  Silkman,  113  Pa.  St- 
191;  Commonwealth  v.  Wyman,  137  Pa.  St.  508;  Rymer  v.  Luzerne  County,  142  Pa. 
St.  108;  Guldin  v.  Schuylkill  County,  149  Pa,  St.  210;  Commonwealth  v.  Macferron,  152 
Pa  St  244;  Perkins  v.  Philadelphia,  156  Pa  St..  554;  Philadelphia  v.  Westminster 
Cemetery  Co.,   162  Pa.    St.   105;   York  City  School  Districts'  Appeal,  169  Pa.   St.  70. 

4.  'Supra,  p.   49. 

5.  Philadelphia  v.   Haddington    Church,   115   Pa.    St.    291. 

6.  118  Pa.   St.   192;   supra,  p.  53. 

7.  P.   L.   9. 

58 


municipal  powers  and  to  matters  of  local  government.  The  supposed  classi- 
fication in  the  Act  of  1879  is  of  a  very  different  character. 

"The  Act  provides  for  the  incorporation  and  government  of  street  rail- 
way companies,  but  it  does  not  affect  all  such  companies.  It  selects  such 
companies  as  may  be  located  in  cities  of  the  second  and  third  class,  and. 
makes  special  provision  for  them,  while  all  other  street  railway  companies 
remain  under  the  operation  of  the  general  law.  This  is  just  what  the  con- 
stitution declares  shall  not  be  done." 

Another  importa/nt  case  upon  this  point  is  In  re  Ruan  Street.1  This 
case  involved  the  Act  of  May  6,  1887,2  which  related  to  the  improvement  of 
streets  in  cities  of  the  first  class,  providing  for  the  assessment  and  payment 
of  damages  and  benefits  arising  therefrom,  etc.  This  act  was  held  invalid 
(except  as  to  the  first  two  sections),  on  the  ground  that  it  did  not  relate  to 
municipal  purposes  within  the  principle  justifying  the  classification  of  cities. 
In  this  -decision  the  court  declared :  "We  come  now  to  inquire  what  legisla- 
tion remains  forbidden  to  cities,  notwithstanding  classification.  I  reply  that 
all  legislation  not  relating  to  the  exercise  of  corporate  powers,  or  to  cor- 
porate officers  and  their  powers  and  duties,  is  unauthorized  by  classification. 
*  *  *  For  example,  there  cannot  be  one  rate  of  interest  in  cities  of  the 
first  class,  another  in  those  of  the  second  or  third,  and  still  another  for  the 
rest  of  the  State,  but  the  rate,  when  fixed  by  law,  must  apply  to  all  parts  and 
divisions  of  the  State  alike.  The  same  thing  is  true  of  the  law  of  descent, 
and  so  on,  through  the  entire  list  of  subjects  upon  which  local  and  special 
legislation  is  forbidden.  If  classification  can  relieve  against  the  constitu- 
tional prohibition  as  to  one  of  these  subjects,  it  can  relieve  as  to  all." 

Again,  in  Shaaber  v.  Reading,8  the  decision  in  Ruan  street  was  ex- 
plained as  follows:  "What  was  denied  was  the  right  of  the  Legislature  to 
make  the  classification  of  cities  the  basis  of  legislation  for  them  on  sub- 
jects not  relating  to  the  organization  or  administration  of  their  municipal 
governments,  but  to  questions  of  public  concern,  such  as  the  forms  of  pro- 
cedure in  the  courts  of  the  State;  the  rate  of  interest;  exemptions  of  prop- 
erty from  levy  and  sale  on  legal  process ;  the  mode  of  proceeding  to  secure  a 
citizen  compensation  for  an  entry  on  his  property  for  public  use  by  virtue 
of  the  right  of  eminent  domain,  and  the  like.  In  other  words,  we  held  that 
while  the  classification  of  cities  authorizes  all  necessary  legislation  for  them 
as  cities,  in  the  management  of  their  municipal  affairs,  it  does  not  make  three 
separate  States  within  the  territorial  limits  of  Pennsylvania,  for  each  of 
which  there  may  be  different  laws,  on  subjects  of  a  general  character,  from 
those  in  force  in  the  rest  of  the  Commonwealth.  On  the  other  hand,  while 
cities  may  have  the  legislation  needful  to  the  proper  regulation  and  dis- 
charge of  all  municipal  powers,  they  are,  under  the  constitution,  and  they 
must  remain,  a  part  of  the  State  of  Pennsylvania,  for  all  purposes  not  muni- 
cipal, and  subject  to  the  laws  of  the  State  upon  all  subjects  not  of  municipal' 
concern." 

1.  132  Pa.   St.  257. 

2.  P.   L.  87. 

3.  133  Pa.   St.  653. 

59 


This  principle  was  also  very  clearly  stated  by  Williams,  J.,  in  the  opinion 
in  Wyoming  street:1  "Some  confusion  seems  to  exist,  however,  in  regard 
to  the  definition  of  a  general  law,  and  a  theory  has  been  advanced  in  several 
recent  cases,  and  has  been  contended  for  by  the  appellee  in  this  case,  that 
the  division  of  the  cities  of  the  state  into  classes  by  the  Act  of  1874,  which 
was  recognized  as  a  necessary  classification  in  Wheeler  v.  Philadelphia,  77 
Pa.  St.,  338,  required  us  to  hold  any  law  to  be  general  which  embraces  all 
the  cities  of  a  given  class,  without  regard  to  the  subject  to  which  it  relates. 
This  theory  overlooks  the  objects  and  purposes  of  classification,  which  are 
very  clearly  set  forth  in  the  first  section  of  the  act  which  divides  the  cities  of 
the  state  into  three  classes.  These  are,  to  make  provision  for  the  municipal 
needs  of  cities  which  differ  greatly  in  population.  Differences  in  population 
make  it  necessary  to  provide  different  machinery  for  the  administration  of 
'certain  corporate  powers,'  and  to  make  a  difference  in  'the  number,  character, 
powers  and  duties  of  certain  corporate  officers,'  corresponding  with  the 
needs  of  the  population  to  be  provided  for.  An  Act  of  Assembly  that  re- 
lates to  a  subject  within  the  purposes  of  classification,  as  they  are  thus  de- 
clared by  law,  is  a  general  law,  although  it  may  be  operative  in  a  very 
small  portion  of  the  territory  of  the  state,  if  it  relates  to  all  the  cities  of  a 
given  class.    *    *    * 

"The  test,  therefore,  by  which  all  laws  may  be  tried  is  their  effect.  If 
they  operate  upon  the  exercise  of  some  power  or  duty  of  a  municipality  of 
the  given  class,  or  relate  to  some  subject  within  the  purposes  of  classifica- 
tion, they  are  general,  otherwise  they  are  local."2 

1.  137  Pa.   St.  494. 

2.  Same  principle  laid  down  in  Straub  v.  Pittsburg,  138  Pa.  St.  356;  Pittsburg's 
Petition,  138  Pa.  St.  401;  Scranton  v.  Whyte,  148  Pa.  St.  419;  Reeves  v.  Philadelphia 
Traction  Company,  152  Pa.  St.  153;  Safe  Deposit  &  Trust  Company  v.  Fricke,  152  Pa. 
St.  231;  McKay  v.  Trainor,  152  Pa.  St.  242;  Commonwealth  v.  MacFerron,  152  Pa.  St 
244;  McAskie's  Appeal,  154  Pa.  St.  24;  Harris'  Appeal,  160  Pa.  St.  494;  Bruce  v.  Pitts- 
burg, 166  Pa.   St.   152;  Van  Loon  v.  Engle,  171  Pa.   St.   157. 


60 


CHAPTER  V. 

How  Shall  the  State  Control 
Municipalities  ? 

The  experience  of  both  Ohio  and  Pennsylvania  shows  that  in  these  states 
constitutional  limitations  upon  special  municipal  legislation  have  failed  to 
accomplish  their  purpose  of  protecting  cities  against  such  legislation.  The 
reasons  for  this  failure  are  twofold:  (i)  The  legislative  unwillingness 
to  grant  the  cities,  by  general  law,  adequate  powers,  especially  adequate 
financial  powers.  (2)  The  failure  of  the  constitution  to  define  "special  act" 
— thus  making  possible  the  judicial  doctrine  of  classification,  the  practical 
effect  of  which  is  to  destroy  the  protection  which  the  constitutional  limita- 
tion was  designed  to  afford. 

Hence  there  still  remains  for  solution  the  problem  of  the  best  means 
of  avoiding  the  evil  of  constant  legislative  interference  in  local  affairs. 
Several  conclusions  seem  warranted  by  past  experience. 

(1).  The  first  step,  clearly,  is  to  utilize  all  the  protection  afforded  by  a 
liberal  construction  of  constitutional  provisions.  Although  the  term  "special 
act"  is  not  defined  in  the  constitution,  the  convention  debates  show  con- 
clusively that  the  framers  of  the  constitution  meant  to  prohibit  all  acts 
which  did  not  apply  to  all  cities  of  the  state.  These  provisions  have  not 
been  thus  broadly  construed :  in  their  decision  sustaining  classification  the 
courts  have  seemed  to  lose  sight  of  the  doctrine  that  "constitutional  pro- 
visions are  to  be  broadly  construed  so  as  to  carry  out  the  great  principles  of 
government."  An  important  step  toward  a  proper  construction  of  these 
provisions  has,  however,  been  taken  in  both  Pennsylvania  and  Ohio:  in 
Ohio,  by  the  recent  decisions1  overruling  the  entire  doctrine  of  classifica- 
tion; and  in  Pennsylvania  by  the  decision  in  Ayars'  Appeal1  laying  down 
the  rule  of  exigency  as  a  limit  upon  the  number  of  classes  that  may  be 
created,  and  declaring  that  in  the  judgment  of  the  court,  three  classes  of 
cities  cover  every  conceivable  necessity.  While  the  Pennsylvania  court  has 
never  allowed  the  doctrine  of  classification  to  be  carried  to  the  extreme  for- 
merly sanctioned  in  Ohio,  its  decisions  upon  classification  deny  to  the  chief 
city  of  the  state  the  protection  against  special  legislation  which  the  framers 
of  the  constitution  intended  to  afford ;  and  the  first  desideratum  in  Penn- 
sylvania would  seem  to  be  to  follow  the  recent  decision  of  the  Ohio  Su- 
preme Court,  and  overrule  the   entire  doctrine  of  classification.     Classifica- 

1.  The  State  ex  rel.  Knisely  et  al.  v.  Jones  et  al.,  66  Ohio  State,  453;  The  State 
of  Ohio  ex  rel.   The  Attorney  General  v.   Beacom  et  al.,  66   Ohio  State,   491. 

2.  122   Pa.    St.    266. 

61 


V 


C 

■», 

tion  forbidden,  legislation  must  proceed  by  general  law,  and  legislative  inter- 
ference in  local  affairs  will  at  once  greatly  decrease. 

(2).  Another  step  which  might  be  taken  in  conjunction  with  the  fore- 
going would  be  the  adoption  of  a  constitutional  amendment  permitting  cities 
to  frame  charters  for  their  own  government.1  In  1875  Missouri  took  the 
lead  in  this  direction  by  adopting  a  constitutional  provision  permitting  cities 
with  over  100,000  population  to  frame  their  own  charters.  California  adopted 
a  similar  provision  in  1879,  the  provision  being  extended  in  1890  to  all  cities 
with  over  3,500  inhabitants.  In  1889  Washington  was  admitted  as  a  state 
with  a  constitution  which  extended  this  privilege  to  cities  with  more  than 
20,000  inhabitants.  Minnesota  extends  the  privilege  to  any  city  or  village 
in  the  state,  and  Colorado  in  1902  extended  the  privilege  to  first  and  second 
class  cities.  Such  a  provision  is  the  most  radical  step  which  has  yet  been 
taken  in  American  politics  in  the  endeavor  to  secure  home  rule  for  cities. 
The  objections  to  this  plan  are  that  it  carries  local  autonomy  to  an  extreme, 
-and  fails  to  recognize  that  the  state  has  a  direct  and  vital  interest  in  the 
governmental  functions  of  the  city,  and  hence  may  legitimately  control  the 
city  upon  its  public  or  governmental  side. 

(3).  Another  solution  strongly  urged  by  very  high  authority  is  the 
introduction  of  a  system  of  administrative  control  of  cities  in  place  of  the 
jpresent  method  of  legislative  control.1 

That  legislative  control  of  municipalities  is  discredited  can  scarcely  be 
controverted.  The  legislature  being  a  partisan  body  controlled  by  a  party 
majority,  frequently  acts  with  reference  solely  to  the  partisan 
advantages  resulting  from  its  control  over  local  affairs,  instead  of 
with  reference  to  the  welfare  of  the  city.  New  and  unnecessary  municipal 
offices  have  been  created,  cities  have  been  redistricted,  the  mode  of  appointing 
the  police  force  has  been  changed,  whenever  such  action  seemed  expedient 
for  party  reasons.  This  interference  for  partisan  ends  has  perhaps  been 
the  greatest  evil  resulting  from  legislative  control. 

Moreover,  legislative  control  is  unintelligent  control.  The  great  ma- 
jority of  the  legislators  take  no  legitimate  interest  in  municipal  legislation, 
and  such  legislation  is  usually  passed  perfunctorily  upon  the  recommenda- 
tion of  the  representatives  from  the  particular  municipality,  receiving  little 
or  no  consideration  from  the  legislature  as  a  whole.  Hence  legislative  con- 
trol is  also  irresponsible  control— the  local  representatives  being  usually 
able  to  shift  responsibility  for  improper  measures  upon  the  entire  legislative 
body. 

Furthermore,  legislative  control  is  excessive.  The  legislature  has  almost 
invariably  shown  itself  unwilling  to  grant  cities  large  discretion  in  local 
matters,  and  has  generally  restrained  the  municipalities  within  such  narrow 
limits  that  they  have  been  compelled  frequently  to  address  the  legislature 
for  additional  powers.     The  legislature  has  entirely  overlooked  the  distinc- 

1.  Supra,    p.    16. 

2.  The  following  books  and  articles  discuss  this  subject:  Goodnow,  Frank  J.: 
Municipal  Problems;  Municipal  Home  Rule.  Holls,  F.  W.:  State  Boards  of  Municipal 
Control,  Proceedings  of  the  Fourth  National  Conference  for  Good  City  Government, 
held  in  Baltimore,  1896,  p.  226.  Jenks,  J.  W.:  A  State  Municipal  Board.  Shaw, 
Albert:  Municipal  Government  in  Great  Britain;  Municipal  Government  in  Continental 
Europe. 

62 


tion  between  local  and  general  affairs,  and  has  interfered  almost  as  freely 
in  purely  local  matters  as  in  those  public  ones  which  may  properly  be  sub- 
jected to  state  control,  and  hence  local  autonomy  has  been  largely  destroyed. 

Finally,  legislative  control  is  inefficient  control.  The  friends  of  special 
legislation  formerly  urged  that  such  legislation  for  cities  was  necessary 
in  the  interests  of  the  state  as  a  whole,  especially  as  a  bulwark  against 
-municipal  extravagance.  Legislative  control  has,  however,  proven  a  very 
inefficient  bulwark,  as  the  legislature  has  utterly  failed  in  its  role  of  guar- 
dian of  the  financial  interests  of  the  city — on  the  contrary,  it  has  frequently 
■countenanced  raids  upon  the  municipal  treasury  which  local  control  would 
never  have  suffered1. 

The  five  chief  counts  in  the  indictment  of  legislative  control,  then,  are 
that  such  control  is  partisan,  unintelligent,  irresponsible,  excessive  and 
inefficient.  Legislative  control  of  municipal  affairs  being  discredited,  what 
is  the  remedy?  Most  writers  have  believed  it  to  consist  in:  (i)  a  careful 
distinction  between  those  municipal  functions  which  are  private  or  local  in 
their  nature  and  those  which  are  public  or  governmental;  (2)  in  granting 
to  the  municipality  unrestricted  control  of  its  local  functions;  and,  (3)  in 
the  establishment  of  a  state  municipal  board  as  a  means  of  controlling  the 
public  or  governmental  functions  of  the  municipality. 

The  establishment  of  a  state  municipal  board  is  suggested  by  the  suc- 
cessful experience  of  England,  France  and  Germany,  where  administrative 
control  of  municipalities  prevails.  Thus  in  England  the  Local  Government 
Board  at  London  exercises  a  large  degree  of  control  over  the  public  or 
governmental  functions  of  municipalities.  Poor  relief,  public  health,  con- 
stabulary, education,  expenditures,  are  all  subjected  to  a  central  administra- 
tive control.  This  control  in  England,  as  in  France  and  Germany,  has  gen- 
erally  proven  highly   efficient. 

What  would  be  the  advantages  of  the  introduction  in  this  country  of 
.a  system  of  administrative  control  of  municipal  affairs?  Advocating  the 
establishment  of  a  Municipal  Government  Board  in  the  state  of  New  York, 
Professor  J.  W.  Jenks    summarizes  the  advantages  as   follows : 

"A  Municipal  Government  Board  then  would  tend:  (1)  to  make  clear 
the  true  relations  between  the  functions  of  state  and  local  governments; 
(2)  to  secure  the  efficient  performance  of  state  functions  by  local  officials; 
<3)  to  furnish  to  the  public  information  regarding  the  performance  of  local 
functions  in  such  comparative  form  that  it  would  be  of  great  service  to  local 
officials;  (4)  to  do  supervising  work  of  such  a  nature  that  it  would  check 
continual  interference  in  local  affairs  by  the  legislature  without  checking 
the  legislature  in  the  making  of  needed  general  laws;  (5)  to  stimulate  by 
publicity  and  encouragement  local  pride  and  activity  in  affairs  purely  local 
and  to  develop  the  spirit  of  local  home  rule;  (6)  to  guide,  by  accurate  and 
full  information,  public  opinion  on  the  various  questions  arising  in  connec- 
tion with  city  government. 

"It  is  hardly  too  much  to  say  that  every  authority  on  municipal  govern- 
ment in  this  country  and  Europe  favors  a  central  administrative  super- 
vision oi  local  governments   along  the  lines  here  laid  down.     The  demand 

1.  Such  as  acts  compelling  cities  to  create  debts  against  their  will;  authorizing  a 
city  to  issue  bonds  to  the  amount  of  $20,000,000  to  build  a  railroad,  etc. 

63 


for  the  reform  of  the  evils  of  our  city  governments,  and  for  the  lessening 
of  legislative  interference  with  them  is  strong;  the  best  remedy  seems  to 
be  the  one  suggested. 

"There  is  every  reason  to  believe  that  from  the  money  saved  to  the 
state  and  municipalities  by  the  supervision  of  the  Board  the  expenses  of 
its  administration  would  be  paid  many  times  over,  while  the  general  excel- 
lence and  efficiency  of  the  government  would  be  greatly  increased.  It  is  not 
to  be  expected  that  any  new  board  would  work  a  revolution  in  our  municipal 
politics  and  give  us  an  ideal  system;  but  it  does  seem  probable  that  no 
other  improvement,  ordinarily  suggested,  in  our  methods  of  city  govern- 
ment would  be  likely  to  yield  so  large  favorable  immediate  results  as  would 
the   establishment  of  a  Municipal   Government   Board." 

The  advantages  of  this  method  of  controlling  cities  upon  their  public 
or  governmental  side  appear  clear.  Such  a  plan  would  be,  to  a  large  extent, 
an  innovation  in  our  political  system ;  but  in  most  states  £ome  form  or  degree 
of  administrative  control  already  exists  in  state  boards  of  equalization,  state 
superintendents  or  commissioners  of  schools,  state  boards  of  health,  etc. 
But  the  proposed  plan  involves  a  great  extension  of  administrative  control, 
and  it  must  not  be  overlooked,  as  a  question  of  practical  politics,  that  a 
strong  prejudice  against  state  boards  now  exists  in  the  minds  of  many 
voters.  This  prejudice  is  doubtless  in  part  due  to  the  fact  that  many  such 
boards  have  been  created  for  improper  objects — for  purposes  which  threat- 
ened the  vital  interests  of  the  cities1.  It  would  be  necessary,  then,  to  remove 
this  prejudice  by  convincing  the  voters  that  a  state  municipal  board  created 
for  the  purpose  of  controlling  the  governmental  functions  of  municipalities 
would  in  no  way  threaten  the  legitimate  interests  of  municipalities.  At  the 
present  time  in  many  states  the  tendency  seems  to  be  away  from  any  sort 
of  central  control,  and  the  conception  of  home  rule  held  by  many  voters 
would,  if  carried  out,  involve  an  abdication  on  the  part  of  the  state  of  prac- 
tically all  control  over  municipal  affairs.  Intelligent  public  opinion  will  con- 
cede that  the  state  has  a  legitimate  interest  in  the  control  of  the  public 
functions  of  the  municipality;  and,  eventually,  when  a  more  clear  concep- 
tion prevails  of  the  proper  relation  of  the  city  to  the  state  and  of  the  real 
meaning  of  home  rule  for  cities,  a  plan  of  state  administrative  control  may 
be  accepted  as  the  best  solution  of  the  method  by  which  the  state  may 
efficiently  control  cities  upon  their  governmental  side,  while  leaving  to  the 
cities  themselves  regulation  of  local  affairs. 

1.  Such  as  the  measure  introduced  in  the  Ohio  General  Assembly  at  the  session  of 
1904    providing    for    the   granting   of   all   local    franchises    by    a   state   board. 


64 


UNIVEESITY  OF  CALIFOENIA  LIBRARY 
BERKELEY 


THIS  BOOK  IS  DUE  ON  THE  LAST  DATE 

STAMPED  BELOW 

Books  not  returned  on  time  are  subject  to  a  fine  of 
50c  per  volume  after  the  third  day  overdue,  increasing 
to  $1.00  per  volume  after  the  sixth  day.  Books  not  in 
demand  may  be  renewed  if  application  is  made  before 
expiration  of  loan  period. 


NOV  26 183® 

DEC  15 19ft 
<5  It  \92& 


10Apr'59AJ 
REC'D  CD 


/ 


no   BROS. 


JUSE 


YC  0944 


r 


^ 


239383 


